dissenting.
I respectfully dissent to that portion of the majority opinion that reversed the Court of Appeals upon the issue of innocent trespass and determined that appellees were willful trespassers. Irrespective of whether or not the Court of Appeals disagreed with trial-court-found facts or inferences, it is manifestly apparent that the trial court and the majority opinion misapplies the law of willful and innocent trespass.
The majority opinion states that the record is silent of any showing by Bethlehem that prior to its entry on Johnson Coal in 1968 it was ever advised by counsel that it had the legal right to do so. Apart from a title report, there were records of deeds and *326claims from which appellees’ map surveys had been prepared, and there was deed survey testimony gleaned from attorney advice that it held mineral tract title to Section 42. It was additional error to reject the advice of reputable counsel thereafter because litigation may have begun.
Perhaps the conclusion of the third and final judge contributed to the enormity of the error; that conclusion being that Bethlehem had somehow promised to do nothing but survey at the time that it sought and obtained injunctive relief. The court, speaking through its records, simply does not support the latter conclusion of the latter judge. A willful trespasser is one who knows when he is wrong and an innocent one is he who believes that he is right. Swiss Oil Corp. v. Hupp, 253 Ky. 552, 69 S.W.2d 1037 (1934), provided:
The test to be applied is that of intent, but, being a state of mind, it can seldom be proved by direct evidence. The conditions and behavior are usually such that the court can determine whether the trespass was perpetrated in a spirit of wrongdoing, with a knowledge that it was wrong, or whether it was done under a bona fide mistake, as where the circumstances were calculated to induce or justify the reasonably prudent man, acting with a proper sense of the rights of others, to go in and to continue along the way. And, in judging the trespasser’s acts, regard must be had for conditions as they then appeared rather than as disclosed in the light east backwards by the future. In a word, they are to be judged prospectively, not retrospectively. So, as stated in Loeb v. Conley, 160 Ky. 91, 169 S.W. 575, Ann. Cas. 1916B, 49, whether a trespasser is to be so regarded depends upon the circumstances surrounding the transaction, and it is from those facts and circumstances that the court will determine whether he was acting in good faith and under an honest conviction that he was right in his assumption. Id. [69 S.W.2d] at 1041. The Court also listed several factors to be considered as evidencing good faith which included:
There should be at least reasonable doubt of the other party’s exclusive or dominant right. The trespasser acted upon the advice of reputable counsel, to whom all the facts had been fairly submitted upon questions of legal right concerning which a layman could hardly have knowledge, such as a disputed title, even though that advice proves to be bad. Of stronger influence, manifestly, is the fact that a court of competent jurisdiction has rendered a favorable judgment upon identical or similar issues. The test is not the trespasser’s violation of the law in the light of the maxim that every man knows the law, but is his sincerity and his actual intention at the time. Therein is to be found his justification. A phase entering into the situation may be the character of the property as it pertains to the question of whether delay would endanger loss and action would seem to be urgent.
Id. at 1041-42.
The situation must be viewed prospectively, not retrospectively. The fact that litigation has commenced in no wise precludes a trespasser from being found innocent, nor does it require that he disbelieve that he is right and know that he is wrong. The trial court erred by surmising that Bethlehem, or any party, was under a duty to litigate the claim in its entirety before mining or acting. See Joyce v. Zachary, Ky., 434 S.W.2d 659 (1968). The 1964 restraining order and the 1971 temporary injunction finding Bethlehem had shown title to minerals under Tract 42 and under standards required for such relief from an earlier judge do, at a minimum, demonstrate probability of prevailing as to the merits of a title claim. A characterization in the majority opinion that “a decision by a trial court on a temporary injunction is not a judgment” is, of itself, a correct pronouncement. It is, however, incorrect when used herein and by its implication that innocent trespass may not be discerned from an action as the one setting forth the grounds in seeking a temporary injunction.
The record does not bear out that Bethlehem said that its only purpose was to go on the land to set up a triangulation point for survey. Preparatory to entering the 1971 injunction was a finding by the trial court that Bethlehem showed ownership rights in the coal in Bethlehem’s Denny Vanover Mineral Tract 42.
The legal standards of Swiss Oil Corporation, supra, were ignored. Bethlehem added nothing to any delay by seeking summary *327judgment prior to obtaining injunctive relief in 1971. This period transcended appellants’ motion for relief by way of summary judgment. The development of Johnson’s final title claims was long in the making and entered by amendment after the passage of many years. Thus, Bethlehem’s reliance on the strength of its own title and reasonable doubts as to the delayed validity of the Johnson title claims was a standard erroneously discarded by the trial court.
I would affirm the Court of Appeals.
STEPHENS, C.J., and WINTERSHEIMER, J., join in this dissent.