Van Doren v. Thurber

California Court of Appeal Mar 3, 1943 No. Civ. 3202Published

Before: Barnard

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Holding. The court held that the lessee was not in default because the lease allowed for monthly payments as a substitute for actual mining production, and the lessor waived any alleged defaults by accepting those payments and failing to provide the required notice and opportunity to cure.

Issues

Whether the lease required actual mining production or permitted monthly payments as a substitute for production.
Whether the lessor waived the right to declare a forfeiture by accepting monthly payments.
Whether the evidence supported findings of abandonment or failure to perform assessment work.

Disposition. reversed

Quotations verified verbatim against the opinion

“the only reasonable interpretation of these provisions is that the lessee, in the event he failed to produce that amount of ore each month, should have the right to pay the amount agreed upon as a substitute for the other requirement”

“by accepting these monthly payments throughout the entire period the respondent waived any default covered by this finding and that he is estopped from now claiming any such default.”

“the purported notice of forfeiture given in November, 1941, did not comply with the requirements of the lease and was insufficient to support an action brought for the purpose of abruptly terminating the lease”

BARNARD, P. J.

This is an action for declaratory relief, to cancel a lease of certain mining claims and to enjoin the defendant from going upon the claims or claiming any interest therein.

The lease, which was executed on March 8, 1939, recited that the claims were leased to the lessee for the sole purpose of exploring, operating, mining, developing and removing minerals “and to sell the products thereof and to pay to the lessor the royalties hereinafter particularly set forth.” It provided for a royalty of $1.00 per ton on ore of a certain mineral content with a proportionate higher or lower royalty for ore of a greater or less mineral content. It provided that the lessee was to enter the premises and diligently work the same in miner fashion and in a manner necessary to take out the greatest amount of minerals that the property would yield “at least to the amount of Seventy (70) tons per month.” This was followed by a provision that the lessee “agrees and guarantees that at no time during the life of this contract and lease while same is in effect shall the production from said mine be less than seventy (70) tons, (2,000 lbs.) per month of forty (40%) manganese ore, and that the sum of Seventy ($70.00) Dollars per month commencing on the 8th day of April, 1939, will be on the 8th day of each and every month thereafter, while this contract is in full force and effect deposited in said bank to the credit of said C. S. Van Doren time being the essence of said payments of minimum royalties.” It was then provided that this minimum payment of $70 per month “shall be considered as advanced royalties and that the Lessee may remove all minerals, metals, ores and/or metallic substances upon which the agreed royalties have been paid, if not removed prior to the payment thereof at any time while this lease is in full force and effect. ’ ’

The lease further provided that if the lessee should abandon the premises and should fail to do any work thereon for a period of 180 consecutive days such failure should be conclusive evidence of an abandonment of the lease, and that in case of any default with respect to any provision of the

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lease notice thereof must be given and if the default for which notice was given was not remedied within thirty days the rights of the lessee should then terminate.

Van Doren v. Thurber

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BARNARD, P. J.

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