Roberts Construction Company v. Vondriska

547 P.2d 1171, 1976 Wyo. LEXIS 176

• Court: Wyoming Supreme Court
• Decided: March 17, 1976
• Docket: 4461
• Status: Published

Opinions

UPON REARGUMENT

McCLINTOCK, Justice.

Roberts Construction Company ¹ appeals from the judgment of the District Court of Crook County, Wyoming entered June 12, 1974 which in principal part required Roberts by July 1, 1974 to remove all stockpiles, debris, and equipment from lands belonging to the plaintiffs. The judgment also gave plaintiffs permission to examine books and accounts of Roberts pertaining to limestone production under a quarry agreement,² required Roberts to restore a gate which had been removed by Roberts and awarded $500 as punitive damages for interference with the gate, and also awarded plaintiffs $25 as nominal damages for Roberts’ violation of the Wyoming Air Quality Act. Costs in the amount of $1,150, representing one-half the cost of aerial photographs and surveys obtained by plaintiffs for .use in the course of the trial of the action, were awarded to plaintiffs. Insofar as this judgment determines that plaintiffs are entitled to discontinuance of use of their lands for stockpiling and storage purposes we are in agreement therewith, but modify the judgment in certain other respects.

In the spring of 1960 Lloyd Cole and his wife, being the owners in fee of a tract of land which we shall hereinafter refer to as the “quarry tract” and having a lease ³ on lands which will be referred to as the "stockpile tract,” gave Roberts oral permission to open a limestone quarry on the quarry tract and at that time suggested that the stockpile tract be used for the purpose of stockpiling limestone removed from the quarry.⁴ At this time the Coles were in the process of selling their ranch to Delvin C. Cooper and his wife, and after consummation of the sale⁵ and under date of July 25, 1960 the Coopers entered into a written agreement with Roberts as to the mining of limestone on the quarry tract, being the SW/4NE/4 and SE/4NW/4 of Section 11, T. 51 N., R. 63 W., 6th P.M., Crook County, Wyoming, together with other lands not here pertinent. This agreement specifically granted Roberts the right to “maintain on said premises stock piles at all times” but did not describe or in any way refer to the stockpile tract. The evidence establishes without contradiction that Mr. Cooper was aware of the use that was being made of the stockpile tract and never objected thereto. The record does not disclose whether the then owners of this tract were aware of the use or that they consented thereto.

In 1967 or 1968 the Óppenheimers indicated to Cole their willingness to sell their 160 acres and an arrangement was worked out whereby they conveyed directly to the Coopers, retaining a one-half mineral interest, and the Coopers then transferred to Cole the remaining one-half interest as to limestone only.⁶ The written transfers of these interests were not effected until some time in 1971 when the Coopers sold their interest in all lands to Clayton H. Talley under a contract for deed dated March 15, 1971. The testimony also shows that Talley knew of the quarry and stockpiling operation and made no obj ection thereto.

Under date of July 11, 1972 Talley’s executor and principal devisee entered into a written contract of sale of the ranch to plaintiffs in which the buyers “acknowledge that they are familiar with the Roberts contract” and that while seller does not reserve any mineral rights, buyers “must purchase subject to the prior reservation of minerals and the contracts in regard to said minerals which are now in effect.” It is specifically provided that exception to title cannot be based on the “Roberts lease, dated July 25, 1960 and recorded in * * * Records of County Clerk of Crook County, Wyoming.”

Plaintiffs were first on the ranch in 1969, and in 1971 had some negotiations with the Coopers for the purchase thereof and looked at the area, including the quarry and stockpile, but did not proceed further. Their purchase in 1972 can properly be found to be with actual knowledge of the existence of the quarry and the stockpiling although there is nothing to show that they were then aware of the specific legal subdivisions that were involved in these operations.⁷ The record shows no objection on their part to the maintenance of either the quarry or stockpile until the filing of this action, although in February of 1973 they attempted to renegotiate the terms of the quarry agreement, without mention of or complaint about the maintenance of the stockpile. Nothing resulted from these and further negotiations held in April, 1973, and on July 3, 1973, without further demand or notice from plaintiffs to Roberts, this action was commenced, alleging in pertinent part that defendant had for more than three years wrongfully and unlawfully used plaintiffs’ lands outside the quarry tract for stockpiling of limestone, removing the topsoil therefrom and killing vegetation, and had used more than one means of ingress and egress and permitted large trucks to drive over lands outside the quarry tract. On this phase of the action injunction against further use of the lands outside the quarry tract is requested, as well as compensatory and punitive damages for improper use of the lands. The trial court found in plaintiffs’ favor as to the wrongful use of 16.13 acres of land outside the quarry tract but that plaintiffs had proved no damages resulting from the wrongful use. Judgment was then entered as we have indicated in the opening paragraph of this opinion. Compliance with the judgment has been stayed by filing supersedeas bond.

In its brief Roberts claims that it is entitled to continued possession of the stockpile tract, free from interference by the plaintiffs, on the basis that, first, the plaintiffs “purchased the ranch subject to the rights of Roberts in said 16.02 acres and with knowledge of the use thereon” and, secondly, that these “16.02 acres for stockpiling purposes are appurtenant to the lease agreement of 1960 and confers upon Roberts an easement in said premises for the term of the lease.”

There can be little dispute that the plaintiffs took with actual knowledge of Roberts possession and use of a part of the purchased premises as a quarry and another part thereof as a location for the stockpile, but that fact alone does not establish that Roberts had any continuing or enforceable rights in the stockpile tract. We must therefore direct our inquiry to determine the rights of Roberts under the facts above set forth.

While the language of the second proposition is somewhat obscure we interpret it to propose that the lease agreement confers an easement in the stockpile tract.

Roberts relies principally upon the case of Owsley v. Hamner, 36 Cal.2d 710, 227 P.2d 263, 24 A.L.R.2d 112 (1951). The plaintiffs in that case had acquired a building a portion of which had been leased to the defendant by plaintiffs’ predecessor. A patio and passageway useful but not absolutely essential to the use of the leased premises were not mentioned in the lease but had been shown in plans in existence at the time the lease was made. The California court recognized as a general proposition that everything which belongs to the demised premises or is used with and appurtenant to them and which is reasonably essential to their enjoyment passes as an incident to them, unless specially reserved,⁸ and further stated the test to be whether such easements are “ ‘reasonably necessary for the beneficial enjoyment of the property leased.’ ” ⁹

In the case before us the use of the stockpile tract was not reasonably necessary for the beneficial enjoyment of the quarry because the quarry agreement specifically gives Roberts the right to stockpile on lands covered by the agreement. Moreover, the ownership of the quarry tract was separate and apart from the ownership of the stockpile tract, the latter not being owned by Cole at the time of his oral agreement with Roberts, nor by Cooper at the time of his written agreement. It has been said that “a mere tenant cannot grant a license to a stranger,” 1A Thompson on Real Property (1964 Repl.), § 217, p. 197; Webb v. Arterburn, 246 Iowa 363, 67 N.W.2d 504 (1954). While we might qualify this statement to indicate that a tenant legally in possession might grant to another a right to use a portion of the leasehold for some purpose not inconsistent with the lease, he could not create any rights running beyond the term of the lease. Cole specifically advised Roberts that he had only a lease and “a first right to buy” the Oppenheimer land so that at some time Roberts might have to move the stockpiles. Roberts accepted this and started stockpiling with full knowledge that its continuing right to use the land was uncertain.

We therefore cannot agree with Roberts’ argument that the right to stockpile was an appurtenance or implied covenant of the mining lease. The fact that Cooper, who executed the written mining agreement, subsequently acquired title and made no objection to the continuance of the stockpile might be of some significance in applying principles of estoppel but not as incorporating the stockpiling consent into the written lease.

There is little doubt in our minds that the enforcement of oral licenses against attempted revocation is based on principles of equitable estoppel. Summarizing briefly from 28 Am.Jur.2d Estoppel and Waiver § 35, p. 640 et seq. the elements of such estoppel, we find that the person estopped must be guilty of conduct which amounts to false representation, intention that such conduct be acted upon, and have knowledge of the real facts. The party claiming the estoppel must be without knowledge or means of knowledge, rely in good faith upon the conduct or statements of the other party, and either take action or refrain therefrom so as to change his position to his injury or prejudice. Application of ythe doctrine depends upon the facts of each particular case and “manifestly there can be no equitable estoppel if any essential element thereof is lacking or is not satisfactorily proved.” Id. at 641.

Coumas v. Transcontinental Garage, Inc., 68 Wyo. 99, 125-126, 230 P.2d 748, 757 (1951) involved a situation where the owner of an existing building, one of whose walls was built flush with the lot line, gave oral permission to an adjoining land owner to use that wall as part of a new building. After analyzing earlier Wyoming cases this court said:

“We think that this court under these decisions is committed to the rule that in the proper case a parol license to use part of the real estate of another becomes irrevocable when a license is executed, and when the licensee in pursuance of and in reliance thereon has incurred expenditures of money or labor in making improvements of a permanent character. It has become a rule of property which should not be lightly repudiated.

“What has been said does not mean that all licenses, followed by expenditures of money or labor, result in the irrevocability thereof, or that the same relief will be given in all cases. It has been said that each case depends ‘on the nature of the license and other circumstances and on whether a revocation in a given case would amount to a fraud upon the rights of the licensee.’ 53 C.J.S., Licenses, § 90, p. 816.” [Emphasis supplied]

Other statements in the opinion make it clear that the expenditures must be made on the strength of the license and not merely incidental thereto. In response to the objection that plaintiff had shown only the cost of the building and not of the particular wall which was all that could be considered as the amount spent on the strength of the license the opinion concedes that there was some merit in the objection. However, it took judicial notice that it would then cost two or three times the original cost to build the wall and continued, 68 Wyo. at 136, 230 P.2d at 762:

“Thus the detriment which plaintiffs would incur by a revocation of the license involved in this case would be large, the plaintiffs could not be put in statu quo, and it would, we think, be unjust to revoke the license now, and it should not be permitted as long as conditions remain substantially as they are now.”

In the present case the trial court has found generally in favor of the plaintiffs. We do not think that it can be said that the license had been executed, in the sense that it could have been so found in Cou-mas, because in that case the building had been erected as a permanent improvement to plaintiffs’ land. Here Roberts asserts only the continuing right to stockpile and no improvements of any kind have been erected. Nor is there anything in the record to indicate that permanent improvements have been made to its own property. While the vice-president of the company testified that some $600,000 had been spent for quarry equipment, “just for the production and stockpiling,” there is nothing to show that this was in any sense a permanent improvement. The evidence does not go into the manner in which the quarry is operated but in the absence of a showing that the equipment is permanently placed upon the land and irremovable therefrom, at least without great expense, we must assume that it is all movable.

Nor do we find in the record any evidence that any expenditures were made on the strength of the permission to use the stockpile tract. While it is clear that sums of money have been spent for a number of years in removing limestone from the quarry, placing it on the stockpile tract, and then removing it from the stockpile tract, it does not appear that any of these operations were in any way peculiar to or irrevocably required the use of this particular tract. These are expenditures which would have had to be made if the limestone was piled on the quarry tract which as we have pointed out Roberts had the full right to under its lease. There is no evidence that, given a reasonable time in which to remove the stockpile from its present location, Roberts cannot commence using the leased land for stockpiling purposes. Strange as it may seem that plaintiffs should prefer to reacquire the use of land which is apparently unsuitable for agrarian purposes and to permit destruction of land which is now suitable for agricultural use, we must conclude that the judgment of the district court is supported by proper evidence and that plaintiffs have and had the right to revoke the permission previously given by a nonowner of the land, tacitly continued by two owners of the land, and acquiesced in by plaintiffs until the filing of this action. We therefore conclude that the trial court was correct in its determination that no permanent or irrevocable license had become vested in Roberts to use the stockpile tract.

However, this does not mean that Roberts throughout these years, even after the acquisition of the property by plaintiffs, has been or upon the date of revocation became a trespasser.

“A license is revoked * * * by the commencement of an action for damages by the licensor against the licensee. A license cannot be revoked so that the licensee will be liable in trespass for his acts done in pursuance thereof.”,

1A Thompson on Real Property (1964 Repl.), § 234, p. 232, and the right of revocation “is subject to the licensee’s right to a reasonable time after revocation in which to remove his chattels”. Id. at p. 230.

We think the trial court had this rule in mind when in its judgment entered June 12, 1974 it allowed Roberts until July 1, 1974 to clean up the premises. Roberts does not in its brief argue that such time was unreasonable or that it would be impracticable to remove the pile within a period of approximately 20 days. No evidence was presented on the issue before the trial court and in the absence of such evidence and objection to the implied finding of the trial court that this was a reasonable time we must conclude that the time allowance was adequate. Roberts has chosen to appeal the matter upon stay of proceedings and must be charged with its own failure properly to appraise the chances of the appeal. As we interpret the stay order, it had the effect of extending time for compliance with the judgment only from June 28, 1974, so that upon entry of judgment on mandate Roberts will become a trespasser unless within three days of the entry thereof it removes the stockpile and other debris from the plaintiffs’ lands. Damages for delay caused by the taking of the appeal and posing of the supersedeas can of course be fixed upon application under Rule 65.1, W.R.C.P.

Count III of the second amended complaint seeks rescission of the mining contract or in the alternative an allowance of damages because of Roberts’ alleged failure to comply with the terms thereof. Among other things it is alleged that Roberts “has refused to close the gates of the Plaintiff and has, in fact, locked said gates open.” In addition to denying these allegations in its answer Roberts by counterclaim asserted that since 1960 it had used certain roads as a means of ingress and egress to and from the quarry and that plaintiffs had intentionally and maliciously placed gates across the roads in order to obstruct and interfere with defendant’s operation and deny the right of ingress and egress given by the mining contract. In-junctive relief and damages were sought because of this interference.

Upon the trial of the case it was established that in the spring of 1973 and before the filing of the second amended complaint Vondriska had installed some fencing, with gate, across one of the roads leading to the quarry. This gate did not prevent use of the road by Roberts but did present the usual difficulties and delays involved with opening, passing through and closing gates. During the period from its installation until July of 1973 a bitter game developed between Roberts’ employees and the Vondriskas, with the former leaving the gate open at all times when they went through and the Vondriskas closing it any time they found it open. This game came to an end in July of 1973, when defendant’s two principal officers deliberately and intentionally pulled the gate from its foundations. We think the record would justify a finding that plaintiffs considered the installation of the gate a reasonable matter of protecting their livestock. There is no doubt that Roberts’ officers and employees considered it a nuisance and an unreasonable restriction upon their claimed free right of ingress to and egress from the quarry.

The judgment contains no general finding in favor of the plaintiffs upon their various claims but with specific reference to Count III the trial court found that defendant had breached the agreement “in some of the respects alleged” but that plaintiffs had failed to prove special or actual damages and were not entitled to rescission of the agreement. It also found that “defendant should restore the gate across the canyon road to its original condition” or in the alternative provide a suitable auto gate, and that plaintiffs should be awarded $500 “as punitive damages for the destruction of the gate and blasting without notice.” The court further found “against the defendant and in favor of the plaintiffs on all counts contained in defendant’s Counterclaim.” As part of the decree Roberts was ordered to restore the gate or install suitable auto gate and plaintiffs were awarded $500 “as punitive damages upon Count III.”

Roberts’ notice of appeal is sufficient to raise the question as to the validity of the trial court’s order for restoration of the gate but no contention is made in the brief concerning this aspect of the case, nor is any point raised concerning the denial of defendant’s counterclaim. In pertinent part the brief attacks the finding and judgment that plaintiffs were entitled to punitive damages, it being asserted that “there is no evidence or law to support the award of punitive damages of $500 to the Plaintiffs for destruction of a gate and blasting of a roadbed without notice to the Plaintiffs.” We were informed in oral argument that defendant had replaced the gate with a cattleguard and plaintiffs have not questioned its sufficiency.

We therefore do not interpret Roberts’ brief and argument in this court as raising any question as to the propriety of the order of restoration and in keeping with the general rule that complaints not substantiated by argument or brief may be considered ás waived, Booth v. Hackney, Wyo., 516 P.2d 180, 185 (1973), and Schaffer v. Standard Timber Co., 79 Wyo. 137, 144, 331 P.2d 611, 613 (1958), we consider that Roberts has waived any claim it might have asserted that the trial court erred in sustaining the right of plaintiffs to install the gate under the circumstances of this case. Moreover, we believe that the legality of the gate is to be determined under the principle enunciated in the annotation in 52 A.L.R.3d 9, 19-20:

“Despite the existence of a number of general rules, the lawfulness of a gate or fence across a right of way remains a question of fact, the courts looking at various factors and balancing the right of the servient owner to use his land, with the right of the right-of-way owner to use his right of way. That the lawfulness of a gate or fence is a question of fact is consistent with the more general proposition that what may be considered a proper use by the owner of the land subject to an easement, generally, is a question of fact.”

This court will not substitute its judgment for that of the trial court where there is substantial evidence regarding the fact, In re Stringer’s Estate, 80 Wyo. 389, 343 P.2d 508, rehearing denied 345 P.2d 786 (1959), and we consider that Vondris-ka’s testimony concerning their need for fence and gate control and testimony of Roberts’ officers concerning their need of free and unrestricted access presented a question of fact for the trial court.

It follows that under the view of the trial court plaintiffs were entitled to money damages for the tearing out of the gate and it was only because of the substitution of remedy, apparently acquiesced in by Roberts, that money damages for the wrongful act were not allowed. The case is therefore not within the scope of Martel v. Hall Oil Co., 36 Wyo. 166, 253 P. 862, rehearing denied 255 P. 3 (1927), where it was held that punitive damages should not be allowed in the absence of award of compensatory damages.

Roberts’ main reliance is upon Waters v. Trenckmann, Wyo., 503 P.2d 1187 (1972), where it was held that punitive damages are not ordinarily allowed in contract cases. This case would be applicable if we interpreted the judgment only as allowing damages for breach of contract and not for tort. We would not so narrowly construe the judgment and believe that while the mining agreement may have been significant in determining the basic rights between the landowner and the right-of-way owner, the decision of the trial court is essentially that Roberts committed a tort for which redress should be given.

In territorial days this court stated the principle which has generally governed in the granting of punitive damages:

“ * * * Punitive or exemplary damages may be awarded in cases where personal injuries have been committed through wantonness or even gross carelessness of one party upon another, but there should be clear and unmistakable evidence of an intention to do the personal injury complained of, before the jury would be justified in finding an amount greatly beyond the actual loss sustained by the person injured.” Union Pacific Railroad. Co. v. Hause, 1 Wyo. 27, 35 (1871),

but a more detailed discussion and one more pertinent to the facts of this case is set forth in Cosgriff Brothers v. Miller, 10 Wyo. 190, 235 et seq., 68 P. 206, 216 et seq. (1901) in which Chief Justice Potter, speaking for the court, reviews the principles pertaining to allowance of punitive damages, with particular reference to Sutherland on Damages, 10 Wyo. at 236, 68 P. at 216:

“ * * * He states the rule in various ways, but the act to authorize the infliction of such damages must, under any statement of the rule, have been done wantonly, recklessly, or maliciously. * * * ‘If a wrong is done willfully, (that is, if a tort is committed deliberately, recklessly or by willful negligence, with a present consciousness of invading another’s right or of exposing him to injury), an undoubted case is presented for exemplary damages.’ (Id. at 724).”

The Chief Justice then concluded that: “* * •* the doctrine of exemplary damages is not only thoroughly ingrafted upon the jurisprudence of this country, but that it is a salutary one, and we are not prepared to hold that it should not be allowed in proper cases in this state.” 10 Wyo. at 237, 68 P. at 217.

The case involved a matter of deliberate trespass upon the lands of another by placing flocks of sheep to graze on lands claimed by Miller, and the opinion continues, 10 Wyo. at 238, 68 P. at 217:

“ * * * This is not a case where defendants claimed any ownership in the lands leased by Miller. Had they done so in good faith, upon some reasonable foundation, a different question would have been presented. The right they claim (and doubtless it was claimed in good faith) was to depasture, not their own premises, but those of another. That sort of claim, although preferred [sic] in good faith, under a mistaken notion of the law, cannot be regarded as a claim of right sufficient' to absolve a trespasser from liability to exemplary damages, where the case otherwise is such as to warrant their infliction.”

The same chief justice, in Hall Oil Co. v. Barquin, 33 Wyo. 92, 237 P. 255 (1925), again discusses principles applicable to such damages and reviews at some length the decisions from-other states, with more particular reference to the claim that a trespass was made in good faith and therefore no punitive damages should be allowed. In one case so cited, City of Clinton v. Franklin, 119 Ky. 143, 83 S.W. 142, 143 (1904), city authorities, without plaintiff’s consent, had entered upon the land, dug up the soil, torn down the fence, and constructed a plank sidewalk, claiming that they had the right to do this under a city ordinance. It was said to be shown by the evidence

“ * * * that its officers and agents were repeatedly notified by appellee, before they began to construct the sidewalk, that they were preparing to place it upon his lot, and warned not to do so, to all which they gave no heed, but persisted in putting it upon his land, in doing which they ignored his rights, and neglected every means of informing themselves as to the true location of his boundary line.”

A quotation in Hall from Richwine v. Presbyterian Church, 135 Ind. 80, 34 N.E. 737 (1893), although not involving the allowance of punitive damages is also pertinent here on the question of good faith, 33 Wyo. at 148, 237 P. at 274:

“ * * Appellant acted with his eyes open, and at his own peril. He was not taken advantage of, nor unawares; but, after suit was brought to enjoin his entering upon the premises, he deliberately proceeded to do what the court was about to decide whether he had a right to do or not. The court having decided against him, he cannot now be heard to claim that he was an occupant in good faith; he took the hazard, and must abide by the result. * * * ’ ”

The position which we believe we must take in this case is summarized in one of a number of other cases cited in Hall, Best v. Allen, 30 Ill. 30, 81 Am.Dec. 338, 339 (1862):

“Here was an unwarrantable attempt by the defendant to take the law into his own hands, in a case where he had no right to take the possession, and even if his title had been good he should have brought ejectment to obtain the possession.”

Chief Justice Potter concludes this portion of the opinion in Hall with this statement, 33 Wyo. at 149, 237 P. at 275:

“ * * * As we have held above, the facts shown in evidence were sufficient to warrant the jury in finding that the purpose of defendants was to drill a well upon the land regardless of their legal right to do so, even though they may have believed at the time that the lease gave them a legal right. And, beyond that, the verdict discloses that the jury found against the defendants upon the facts as to the matter of their alleged good faith.”

There is no question that the acts of Roberts’ officers in this case were willful and deliberate. Alan Roberts testified to the effect that plaintiffs’ lawyer had told the company’s lawyer that there would be no more games and directly that,

“I swore that if that gate was there when I went down it was coming down, * * * I hooked a cable on the back of my pickup and put it around the gate post and gave it a jerk. The gate didn’t —the cable slipped off, so I back up and jerked it again and the gate flew up and went over on the other side of the post where it was partially broke or cracked.”

His father testified:

“Q. And you and Alan deliberately went down there to tear the gate out, is that correct? A. Absolutely.”

After testifying that the gate had been left in that condition and that it could be used again if the Vondriskas would put another post in the ground he proceeded:

“Q. And if they did would you tear it down again ? A. I would have to think about it.”

Here is a deliberate and willful act, perhaps induced by the desire for speed in the conduct of the mining operations, but in any event constituting a willful interference with the property of another. Under these circumstances we do not think that the case of Condict v. Hewitt, Wyo., 369 P.2d 278 (1962), where it was held that the use of foul language constituted sufficient provocation to a beating to rule out allowance of punitive damages, is pertinent. Perhaps here it could be said that plaintiffs provoked the Robertses to do the act they did but it would hardly be a legal justification therefor because the issue of the right to maintain the gate was then before the court and awaiting disposition. Here was an unwarranted attempt to take the law into their own hands.

The question of whether the act was willfully and wantonly done was a question of fact for the trial court and by its judgment the trier of the fact has found that Roberts had no right to remove the gate and that its officers made an unwarranted attempt to take the law into their own hands. For us to reverse that decision would require us to substitute our judgment of the facts for that of the trial court or hold as a matter of law that such deliberate and willful acts did not justify allowance of punitive damages. This we decline to do.

Count IV of plaintiffs’ second amended complaint alleges in pertinent part that Roberts has maintained primary and secondary rock crushers,

“and allowed discharge and omission [sic] of contaminants in a form so as to cause pollution, which violates the rules, regulations and standards as adopted and promulgated by the State of Wyoming. “3. That the Defendant, Roberts Construction Company, has, during the past year, wilfully failed to comply with the air quality standards and has allowed the discharge and omission[sic] of contaminated air in violation of Wyoming law.”,

which acts of the defendant are alleged to have injured the plaintiffs in the sum of $25,000.

Roberts contends that the record is devoid of any evidence that it had willfully failed to comply with air quality standards or that Roberts had violated any standards. It is argued that the trial court has fined Roberts for not being in compliance with rules and regulations of the Wyoming environmental laws and that such authority is not given the court under § 35-502.46 et seq., W.S.1957, 1975 Cum.Supp.

In response to this plaintiffs refer briefly to the evidence showing the lack of emission control equipment, the fact that the old crusher was never designed to control particulates or emissions, and that while the company had water sprays on the secondary crushers they were not used all the time. Reference is made to testimony of Mrs. Vondriska that there “was quite a bit of Visible dust emanating from the mining operations which had serious effects on her son and causes more cleaning.” It is then argued that the facts speak for themselves and that this court should examine only the evidence most favorable to the plaintiffs, giving it every reasonable inference, Wyoming Game and Fish Commission v. Latham, Wyo., 347 P.2d 1008 (1960).

Conceding that the evidence should be viewed in this light, we think that it fails to establish any actionable wrong. We know that pollution of all types, air, water, and land, is of growing concern and we in no way denigrate the efforts of the legislature to protect environmental quality, and this court shall at all times be ready and willing to afford such remedies as are within the law. For purposes of this case, certainly, we would accept the proposition that if there are violations of state or federal laws designed to protect the air quality and an individual suffers injury peculiar to him and not as suffered by the public in general, the courts should be available to that individual to give redress. But in the case at bench there has been no showing as to rules or regulations which may have been violated; there has been no showing that orders of the supervisory authorities have not been complied with or at least compliance therewith extended. We do not think that the plaintiffs have established a case within the issues posed by their complaint and therefore eliminate the allowance of $25 as nominal damages awarded on this fourth claim.

Roberts complains that the allowance of $1,150 costs, representing one-half the cost of obtaining surveys showing the 16.13 acres of land which have been used for stockpiling and storage of equipment and junk, is erroneous, asserting that allowance thereof is in violation of § 1-221, W.S.1957¹⁰ as interpreted by this court in Martel v. Hall Oil Co., supra. The cited statute would appear to have application only if we ruled that the allowance of $500 as punitive damages was incorrect. We have already held that there was basis for this allowance of punitive damages and have consented that actual damages were sustained through the willful removal of the gate, so it may be that only because the trial court ordered the gate restored rather than allowing money damages is the statute even pertinent. We find Roberts’ position without merit on this point.

However, we think that there are strong reasons for considering Roberts’ objection to the allowance of this claim for costs on grounds other than those just mentioned.¹¹ What constitutes proper costs in an action, to be assessed against the losing party, is not very clearly established by either statute or rule. Chapter 14 of Title 1, W.S.1957, entitled “Fees and Costs and Security Therefor,” contains several provisions relating to the allowance of costs, but nowhere is there a statutory enumeration of what charges are included. Rule 54(d) provides that “ * * * costs shall be allowed as of course to the prevailing party unless the court otherwise directs,” but again there is no definition as to what expenses of the trial should be included.

In Mader v. Stephenson, Wyo., 481 P.2d 664, 665-666 (1971) this court considered an allowance of costs representing one-half the cost of obtaining a survey of an easement which plaintiff claimed across lands of the defendant. It was there said:

“The weight of authority seems to be, as stated in 20 C.J.S. Costs § 219, pp. 463-464, that the expense of procuring surveys, maps, plats, plans or photographs is not taxable as costs unless there is clear statutory authority therefor. [Citing authorities]

“This court held in Wyoming Central Irr. Co. v. LaPorte, 26 Wyo. 522, 188 P. 360, 362, the matter of costs is purely statutory as costs were not allowed as a rule at common law. We of course have no statute which purports to authorize the charging of such a survey as is here involved, as an item of cost.”

Notwithstanding this rather plain statement refusing to allow expenses of surveys as costs, plaintiffs refer to this case and quote what appears to us to be a somewhat self-contradictory statement in which it is indicated that there may be circumstances, not found in that case, which justify the charging of such survey expenses as costs. Perhaps the trial judge was persuaded by the circumstances of this case to apply the dictum but we think the remark was unfor-tuitous. Moreover, we think that plaintiffs’ argument that the allowance was proper and within the trial judge’s discretion where the items are necessary for the proper determination of the case fails for want of any showing that the expense was necessary. We cannot read the answer and counterclaim of Roberts as seriously disputing the fact that the stockpile was on lands which were not covered by the quarry lease. If there was a doubt about this, a request for admission should quickly have established what Roberts contended. Similar requests could have established with reasonable certainty the extent of the used area. If the admissions were refused or were insufficient then a survey limited to the determination of disputed matters pertinent to the real issues could have been ordered and conducted so as to invoke sanction provisions of Rule 37(c). This rule expressly refers to and allows expenses involved in proving an improperly disputed matter.

It is fairly clear from the record that this particular survey was made prior to the institution of the action without any real knowledge or belief whether a survey of such detail was required. Further, although Dr. Vondriska testified that he had paid $2,200 for the survey, and the survey- or testified that it took him about a week, there was no evidence before the trial court that such charges were reasonable, an element that has always been required with respect to proof of damages. We do not think that a less stringent rule should be applied under the guise that costs and not damages are being awarded.

We therefore affirm the judgment of the trial court insofar as it permitted the revocation of the license for use of the stockpile tract and allowed punitive damages for destruction of the gate, but would modify it by striking therefrom the allowance of $25 as nominal damages for injury to air quality and the allowance of $1,150 as part of the costs of the action.

1 . Defendant below and hereinafter referred to as “Roberts.” Gilbert and Rhea Vondriska will be referred to as “plaintiffs.”

2 . Neither side takes any exception to the judgment of the court in this respect.

3 . The lease to Cole from one Irene Oppenheimer is not in evidence but was described by Cole without objection as a written lease which “didn’t specify what it was for. * * * It was just a lease. It just said they leased it to me without qualification.”

4 . Cole testified that he had “the first right to buy” the Oppenheimer lands; that he explained this to Roberts and suggested that since the quarry tract land was better than the Oppenheimer land it would be preferable to use the latter land for stockpiling, but that if he did not acquire it Roberts some time in the future might have to move the stockpiles back to the west and continue the operations over there. O. D. Roberts, president of Roberts, testified that Cole wanted his company to put the stockpile where it was and leave a field that Cole had planted in oats “and that’s what we have done since 1960, * * * we have had the use of it all these years. We were directed to use it, even Bud Cooper.”

5 . Cole’s possession under the Oppenheimer lease was transfered to the Coopers but Cole testified that he retained the lease, “I had a mortgage on it.”

6 . While there was some dispute in the trial court about the nature of the retained Cole interest the issue seems to have been settled in favor of Cole and no question is raised in this court as to whether an interest in limestone or gravel constitutes a mineral interest. Nothing that is said herein should be construed as bearing upon that question.

7 .The record does not establish that any of the Coopers, the Talleys, or Yondriskas ever had specific knowledge prior to the taking of aerial photographs and making ground surveys by a licensed surveyor, as to what legal subdivision either the quarry or stockpile was located upon.

8 . Owsley v. Hamner, supra, 227 P.2d at 267, quoting from 86 C.J. 30 § 632, p. 30.

9 . Id. at p. 268, quoting from Bellon v. Silver Gate Theatres, Inc., 4 Cal.2d 1, 10, 47 P.2d 462, 467.

10 . “When the judgment is less than one hundred dollars, unless the recovery be reduced below that sum by counter-claim or set-off, each party shall pay his own costs * * *.”

11 . In State Highway Commission of Wyoming v. Triangle Development Co., Wyo., 371 P.2d 408 (1962) (on rehearing) this court specifically refused request for rehearing based on the fact that the opinion had considered a matter which had not been argued. Referring to the earlier case of Wyuta Cattle Co. v. Connell, 43 Wyo. 135, 299 P. 279, rehearing denied 3 P.2d 101 (1931), it was said that an appellate court cannot be expected to prosecute an independent inquiry for errors upon which the appellant may possibly rely and may invoke abandonment by waiver, but is nevertheless at liberty to decide a case upon any point which would result in a miscarriage of justice if we did not here consider the matter of costs upon the basis of the whole record and our previous decisions on the matter.