(dissenting) — This litigation arises from the development of an 18.16-acre tract. In 1993 the City of Richland rezoned the property R-2 (high density residen*206tial), under which mining is prohibited. Richland Municipal Code 23.24.080. In 1995, Saddle Mountain Minerals bought the mineral rights, nonetheless.
In 1999 Arun and Vandana Joshi bought the property and started a residential subdivision. Some parts of the land had to be graded or cut, while others had to be built up, or filled. Clerk’s Papers (CP) at 345. Whether the Joshis also removed some topsoil from the property is a disputed fact. But it is not a material fact. A material fact is one that is essential to the outcome of the litigation. Hudson v. City of Wenatchee, 94 Wn. App. 990, 999, 974 P.2d 342 (1999). Whether the Joshis removed topsoil from this site is material only if a reasonable jury could find that such removal caused Saddle Mountain monetary damages. Here, the placement of these materials on or off the development site is irrelevant, so long as they are being used as part of a residential subdivision.
I agree with the trial judge that Saddle Mountain’s interest was worthless as a matter of law. And therefore no reasonable jury could find damages.
Standard of Review
In reviewing an order of summary judgment, this court engages in the same inquiry as the trial court. Bishop v. Miche, 137 Wn.2d 518, 523, 973 P.2d 465 (1999); Taggart v. State, 118 Wn.2d 195, 199, 822 P.2d 243 (1992). Summary judgment is proper when the pleadings, depositions, and admissions in the record, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Bishop, 137 Wn.2d at 523.
RCW 4.24.630.
Saddle Mountain claims damages from the Joshis under RCW 4.24.630. For me, the outcome of this case turns, not on the resolution of disputed facts by a jury, but on the interpretation of a statute by the court. We must determine, as a matter of law, whether Saddle Mountain has stated a cause of action against the Joshis.
*207The legislature has determined the precise value of such a claim:
Every person who goes onto the land of another and who removes timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land, or wrongfully injures personal property or improvements to real estate on the land, is liable to the injured party for treble the amount of the damages caused by the removal, waste, or injury.
RCW 4.24.630(1) (emphasis added). Thus, to avoid summary dismissal, the statute (i.e., the legislature) requires Saddle Mountain first to make a showing of some dollar amount of damages. Without such a showing, there can be no material facts at issue and the Joshis are entitled to judgment as a matter of law.
And, absent a showing of monetary damages, the value of Saddle Mountain’s claim against the Joshis is precisely equal to the value of the mining rights Saddle Mountain acquired after all mining was prohibited by the rezoning ordinance — zero.
Resolution of this dispute requires judicial interpretation of the word “minerals” as used in RCW 4.24.630(1). And that requires statutory interpretation, not fact finding. In doing so, I would hold that the Joshis did not remove “minerals” from the land, for the purposes of the statute.
The word “mineral” is used in so many senses, dependent upon the context, that the ordinary definitions of the dictionary throw but little light upon its signification in a given case.
N. Pac. Ry. v. Soderberg, 188 U.S. 526, 530, 23 S. Ct. 365, 47 L. Ed. 575 (1903) (emphasis added); Puget Mill Co. v. Duecy, 1 Wn.2d 421, 426, 96 P.2d 571 (1939). In Weyerhaeuser Co. v. Burlington Northern, Inc., the court reversed a trial court’s ruling that the term “minerals” was unambiguous:
Accordingly, it is apparent to us that “minerals” is at least ambiguous as to whether intended to include all inorganic material or simply valuable deposits such as “coal, iron, natural gas and oil.”
*208Weyerhaeuser Co. v. Burlington N., Inc., 15 Wn. App. 314, 319, 549 P.2d 54 (1976) (emphasis omitted) (citing Puget Mill, 1 Wn.2d 421). The question is the intention with which the parties use the term. Puget Mill, 1 Wn.2d at 425-27.
We turn, therefore, to the context in which the term “minerals” is used here.
In one sense, sand and gravel are certainly minerals, when, for example, they are exploited by means of open pit mining. But in most contexts, sand and gravel are not “minerals” at all. A gardener removes dirt, a rock, gravel, and sand from a field. A farmer does the same. Are they mining? Are they removing minerals? Of course not. And neither were the Joshis. They moved fill dirt to level ground as part of a housing development. As a matter of law, I would hold that sand and gravel used in the context of this transaction is fill dirt — not minerals.
Saddle Mountain would have a claim only if the Joshis began commercially removing (mining) sand and gravel (minerals) for profit. They are not.
The Zoning Ordinance
Mining is “[t]he process of extracting ore or minerals from the ground.” Black’s Law Dictionary 1010 (7th ed. 1999). Under the zoning ordinance in force here, all mining is prohibited. The development of a residential subdivision is, however, permitted. And necessarily, to do this permitted activity, the Joshis, like all developers, cut and fill. This included building a road required by the city of Richland as a condition for approval of this plat.
Saddle Mountain invites us to hold that, in Washington, the acquisition of imaginary rights to virtual assets derived from make-believe interests in land can produce real dollars squeezed from the pockets of legitimate entrepreneurs undertaking genuine risks of actual development of the land for a useful purpose, as well as from the ultimate financial underwriters of the project — the home-buying public. To do so would not only contravene public policy, but *209would also usurp the prerogative of the legislature in violation of the constitution.
To require the Joshis to pay a royalty every time they move fill dirt because Saddle Mountain acquired paper “mineral rights” seriously undermines the right of this surface owner to develop the property. To extend judicial sanction to Saddle Mountain’s proposed interpretation thwarts the orderly development of property. Saddle Mountain contends that the zoning regulatory scheme “merely impairs the ease of commencing commercial mining operations.” Appellant’s Br. at 19 (emphasis added). But the zoning regulations do more than this. They prohibit all mining.
So even if we were to agree with Saddle Mountain that its title to the sand and gravel was not extinguished by the land use restriction, its ability to extract those materials certainly was. If Saddle Mountain does not have the right to remove sand and gravel, on what is its claim of damages to be based? On what ground does it claim a royalty from a developer moving dirt to develop a residential subdivision? The net effect is to impose a tariff on the surface owners— and ultimately on the home buyer — for exercising their legal right to move sand and gravel incident to surface development.
Nature of Saddle Mountain’s Property Right
Saddle Mountain also complains that the Joshis submitted their preliminary plat application without the consent of affected property owners as required by ordinance. The city council, acting in a legislative capacity, gave the required plat approval following notice and public hearing, pursuant to the municipal code. Review of the city council action is not properly before us.
Washington case law on mining questions generally is sparse. But the nature of Saddle Mountain’s right is a *210question that has been answered by this court recently in Harrison v. Stevens County.1
In Harrison, the county required that all parties having “any ownership interest in the lands subdivided” sign the plat application. Harrison v. Stevens County, 115 Wn. App. 126, 129, 61 P.3d 1202, 1204 (2003) (emphasis omitted), petition for review filed (Wash. Feb. 27, 2003) (No. 73655-3). Judge John A. Schultheis, writing for the panel, held (in my view correctly) that the owner of the mineral rights was not an affected property owner and was not therefore entitled to notice:
The right to remove minerals from the land is distinct from ownership of the land, even when the minerals lie on the surface. By holding that Mr. Harrison’s mineral rights included a limited surface estate, the superior court ignored the severance of the mineral rights from the title to the surface, and made the mineral rights adverse to the surface ownership.
Harrison, 115 Wn.2d at 134 (citing McCoy v. Lowrie, 42 Wn.2d 24, 25-26, 253 P.2d 415 (1953)).
Here, the Joshis are the surface owners. Their claim to an absolute right to the surface estate without interference (or imposition of a tariff) from those owning the “mineral rights” (whatever they may be) is, then, well founded. Harrison, 115 Wn.2d at 134.
Conclusion
In sum, the terms “minerals” and “mining” are contextually driven. In this case the Joshis are not mining for minerals. They are certainly moving sand and gravel — dirt. But they are doing so to develop a subdivision. They should have no obligation then to pay the owner of “mineral rights” a royalty for that use. Moreover, the meaning and legal effect of the terms “damages,” “minerals,” and “mining,” as used in the state statute and city zoning code, are questions of law, not fact. Whatever our disposition, the question of *211the legal effect of these terms should be judicially determined, not remanded for a jury to determine.
I respectfully dissent.
Review granted at 150 Wn.2d 1009 (2003).
Harrison v. Stevens County, 115 Wn. App. 126, 61 P.3d 1202 (2003), petition for review filed (Wash. Feb. 27, 2003) (No. 73655-3).