Hodges v. Georgia Kaolin Company , 108 Ga. App. 115 ( 1963 )

Ebhrhardt, Judge.

The battleground of the parties here presents the problem of whether the Company was under obligation to mine any kaolin from the leased premises prior to the bringing of this action in 1961. The plaintiff Hodges asks that we hold that there was an implied covenant in the lease obligating the Company to begin mining operations within a reasonable time after it was executed. On the other hand, the Company advances a number of reasons why no such covenant should be found, asserting that the contract language is clear and unambiguous.

The provisions in the lease that payment of rentals during the first five years would not cumulate as credits applicable to royalties for the mined clays and for a different rental thereafter indicates, we think, that at least for that period the parties contemplated that there might not be any mining operation during that period, and hence as to it there was no implied covenant. We find it unnecessary to decide whether, after the expiration of the first five years, when the rentals paid did accumulate as credits against royalties to be paid, there was any implied covenant to proceed, since we do hold that the events transpiring in 1954 and 1955 (notice by Kaolin to Hodges to remove his timber, removal of the overburden, amendment of the lease changing the method of determining royalty payments, and the sale to Kaolin of a site for the sinking of a deep well for mining-operations on the property) gave rise to an obligation on the part of Kaolin to proceed with the mining within a reasonable time. The argument that Hodges still had the use of his land fails, for a substantial portion of it was rendered unsuited for any use save that of mining when the overburden was removed.

In this connection the language of the lease is pertinent. It provides that “for the purpose [of mining and removing kaolin or other clays] and for the purpose of carrying on similar mining operations on other neighboring lands Lessee shall have full and complete rights of ingress and egress to, from and over all parts of said land; the right to search for kaolin or other clays, the right to make excavations and pile waste earth from this or adjacent property on any part of said land . . .” It seems abundantly clear to us that the right to remove the timber and overburden, to make excavations and pile waste earth on the leased lands is dependent upon a purpose of the lessee to proceed with a mining operation, and that this should be done with reasonable diligence. What is “reasonable diligence” or a “reasonable time” under the circumstances here is a factual question for determination by the jury. Grant v. Haymes, 164 Ga. 371 (4) (138 SE 892). It may well be that when the lessee engages in an exploratory operation it will be discovered that there is no kaolin to be mined from the land, or that it can not be done in quantities sufficient to make it a profitable operation, in which event we think that the lessee’s duty to mine will have been exhausted. The fact that those operations may render the land without value for fanning would not give rise to any cause of action, for that is a risk that the lessor took- When he entered into the lease agreement. But if the lessee causes the timber to be cut and the overburden to be removed and stops there without doing more, we think it has gone beyond the authority of the lease and has stopped short of its obligation thereunder. Further, it is alleged in the petition here that this was done with no intention of doing any mining. These allegations are sufficient as against a general demurrer.

The measure of damages alleged in the petition is not dealt with here since a general demurrer does not reach the question of the proper measure of damages. Crawford v. Sumerau, 100 Ga. App. 499 (111 SE2d 746); Dixie Seed Co. v. Smith, 103 Ga. App. 386, 390 (119 SE2d 299).

The general demurrer to the petition should have been overruled and the judgment is

Reversed.

Felton, C. J., and Russell, J., concur.