Guttinger

Plaintiffs sought to recover damages alleged to have been caused by the operation of defendant’s cement plant which caused dust and chemicals to be deposited upon their lands. The defendant’s answer admitted the operation of the plant, denied the material allegations of the complaint, and alleged as affirmative defenses that (1) the action was barred by the three-year statute of limitations; (2) the present action should be abated because the prior action was still pending; (3) the prior action is res judicata as to the issues raised in the present proceeding; and (4) the plaintiffs, having elected to pursue an equitable remedy in the prior case, they are now estopped from bringing the present action at law.

Pursuant to a motion of defendant the cause proceeded to trial on the affirmative defenses raised by the answer, and by stipulation of counsel the cause was submitted upon the record in the former ease. (Guttinger v. Calaveras Cement Co., 105 Cal.App.2d 382 [ 233 P.2d 914 ].) The trial court concluded that defendant’s special defenses numbers two, three and four constituted a bar to maintaining the present action but found in favor of plaintiffs on the first, in other words…