Haughey Et Al. v. Champion Paper &Amp; Fibre Company., 103 Ga. App. 439, 119 S.E.2d 705 (1961)

Status: DECIDED

Docket Number: 38706

Parts: Declaratory judgment. Wilkes Superior Court. Be...

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Colley & Orr, Wilbur A. Orr, Jr., contra.Walton Hardin, for plaintiffs in error.

A petition for a declaratory judgment, which alleges that the defendants, who own the mineral rights in a tract of land, propose to encroach on the plaintiff's rights to the surface of the land, and which does not allege that the proposed actions threatened by the defendants are not necessary in their legal and proper mining operation of the land, is subject to general demurrer.

The plaintiff, Champion Paper & Fibre Company instituted an action against the defendants, R. E. Haughey et al., seeking a declaratory judgment. The purpose of the action was to have determined the rights of the respective parties with reference to the use of timber and topsoil on the lands in question, the plaintiff owning the surface rights and the defendants owning the mineral rights in said lands. The instrument or instruments under which the defendants acquired the mineral rights in the land provided as follows: "All the mining and mineral rights in, on or under the following described property, to wit: . . . (lands here described are identical lands described in Paragraph 3 above). The parties of the first part agree that the parties of the second part shall have right of ingress and egress for mining purposes to any and all parts of the above described six hundred thirteen (613) acres, except the yard, garden and stable lot flow being used by them as such, and to have the right to mine, extract or take from the above described property, the gold, silver and all other minerals of every kind or character that may be found in or under the land, and the right to erect such buildings as may be necessary or helpful in mining said property, and including the laying of pipe lines, buildings, flumes, ditches, cuts or any other means of conveying water to any or all parts of this property in the use of such water, wood and timber as may be needed by them to carry on the said mining. Also free use of the house now being used by them in part as a tool house. The second parties shall have the right to dump, pile or store all ore, rock and dirt that may be mined for present or future use and to transport the same to any part of said property by such means as they deem necessary." The petition, in addition to the foregoing, alleged: "(3) Petitioner is informed and alleges that the above named defendants are now the owners of the mineral interest in said lands, either by conveyances from the other named grantees in the above-described deed or by inheritance from them, these being facts solely within the knowledge of the defendants. (4) That the petitioner is entitled to the use of the surface of said land for the purpose of planting crops, the planting and harvesting of timber, and any other proper and legal purpose that the surface of said lands may be used by petitioner. (5) Your petitioner shows that it is using said lands, the surface thereof, for the purpose of operating a tree farm, in the planting and raising of timber for sawmill and pulpwood purposes, and in the conduct of these operations, it has planted a large number of acres of this land in seedling pines. (6) Petitioner shows that the defendants are contending and claiming that they have the right to the removing of the trees from said lands for the purpose of mining operations and are making plans to have the land, or great portions thereof, burned over, destroying all timber thereon, which they contend is necessary in their mining operations. (7) Your petitioner shows that by the title conveyed to them, the defendants have a right to the use of the timber only 'as may be needed by them to carry on the said mining.' (8) Your petitioner contends that the defendants do not have the right, legal or equitable, to destroy or mutilate or damage any timber on said lands or the land itself except such parts thereof as may be needed for their mining operations and

the timber or wood that may be needed for that purpose. (9) As set out above, the defendants have commenced, or are about to commence, the burning of the timber on said land and the damage or destruction of other parts thereof of the surface, in accordance with their contentions, and that they will do so before a judgment can be rendered in this proceeding unless they are restrained and enjoined from so doing by the court, and that this conduct sought to be restrained will injure the petitioner in an amount that cannot be reasonably ascertained. Because of the facts herein alleged, the defendants should be restrained and enjoined by this court from burning the timber or the damage or destruction or mutilation of other parts of the surface thereof, pending the adjudication of the questions raised in this petition, and in order to maintain the status pending the adjudication of such questions, in order to preserve the rights of the petitioner as herein above set out, the court is requested to grant a restraining order pending said adjudication." The court overruled the general and special demurrers to the petition, and the defendants excepted.

The Supreme Court in Haughey v. Arnold, 159 Ga. 243 (125 S. E. 451) held that the language in the conveyances in this case gave to the owners of the mineral rights in the land the right to use only so much of the timber on the land as was reasonably necessary to be used in direct connection with mineral operations, and at such times as the same may be required for such uses. Construing the petition most strongly against the plaintiff, it does not allege that the proposed action by the defendants in dealing with the trees and surfaces of said land was not necessary to normal mineral operations on the land. The petition does allege that the defendants contend that their proposed action is necessary in their mining operations and the petition also alleges, and correctly so, that the defendants have a right to the use of the timber "only as may be needed by them to carry on the said mining." We think that this deficiency is fatal to the right of the plaintiff to have a declaration of rights in the premises. Although the case of Brooke v. Dellinger, 193 Ga. 66 (17 S. E. 2d 178) involved an action for damages, we think the principle there ruled on is controlling even in a declaratory judgment action. In that case the court held that the action was properly determined on general demurrer because the petition failed to allege that the defendant in conducting mining operations conducted them in a negligent or improper manner, or that the acts complained of were not reasonably necessary to obtain the minerals conveyed. We are inclined to believe that the plaintiff in this case was under the impression that the petition in this case contained the necessary allegations. In view of the fact that the failure by the plaintiff in this case to make the necessary allegations, as indicated above, amounts to an admission that the proposed conduct of the defendants was necessary and proper in their mining operations, it was error for the court to overrule the general demurrer to the petition. The special demurrers are without merit. The court erred in overruling the general demurrer to the petition.

Judgment reversed. Nichols and Bell, JJ,, concur.