Whipple Road Quarry Co. v. L. C. Smith Co.

DOOLING, J.

This is an appeal from an order denying an application for a temporary injunction. Appellant and respondent entered into an agreement of lease wherein appellant is lessor and respondent lessee. Respondent bound itself as lessee to operate the property as a quarry, to install certain equipment therein, to pay the lessor 7% cents per ton for all rock removed, to sell to lessor all crusher base rock desired by lessor at 65 cents per ton, and to operate said quarry as a commercial quarry and sell rock to the public at the prevailing market price during the term of the lease. Respondent also bound itself that “during the term of this lease, the existing plant of Lessee shall remain on the premises. ...”

Respondent gave notice of the termination of the lease and appellant brought an action for declaratory relief and for an injunction enjoining the removal of the existing plant of respondent from the premises. It applied for a temporary injunction to enjoin the removal of the plant which was denied.

The ease is controlled by the rule announced in

Long Beach Drug Co.

v.

United Drug Co.,

13 Cal.2d 158 [88 P.2d 698, 89 P.2d 386], in which the court at page 168 approved

[216]

the holding in

Anderson

v.

Neal Institutes Co.,

37 Cal.App. 174 [173 P. 779] “that where a contract contains both affirmative and negative stipulations, equity will not interfere to prevent a breach of the negative covenant when the affirmative covenant is of such a nature that it cannot be specifically enforced by judicial decree.”

The affirmative covenants to operate the property as a commercial quarry, sell to the public at prevailing rates, pay royalties to appellant etc., fall within the rule that ‘ courts of equity will not decree the specific performance of contracts which by their terms stipulate for a succession of acts whose performance cannot be consummated by one transaction, but will be continuous and require protracted supervision and direction.”