Georgia Peruvian Ochre Co. v. Cherokee Ochre Co.

1. The petition as amended set forth a cause of action, and the court erred in dismissing the same on general demurrer. 2. The petition was not subject to any of the special demurrers urged.

Equitable petition. Before Judge Tarver. Bartow superior court. June 19, 1920. The Georgia Peruvian Ochre Company filed a petition in Bar-tow superior court, naming the Cherokee Ochre Company and Thompson, Weinman & Company as defendants. The petition, as amended, set forth substantially the following allegations: The plaintiff is the owner of the minerals upon land lot No. 531, and the Cherokee Ochre Company is the owner of the minerals upon land lot No. 478, the latter lot being adjacent to and immediately north of lot 531, and both being in the fourth district and third section of Bartow county. Thompson, Weinman & Company hold a lease from the plaintiff, which gives to them the right to extract the barytes ores from lot 531 at a royalty of $1 per ton. Thompson, Weinman & Company also hold a lease from the other defendant, the Cherokee Ochre Company, which gives to them the right to extract the barytes ores from lot 478 (the adjoining lot immediately north of lot 531) at a royalty of -35 cents per ton. A dispute has arisen between the plaintiff and the Cherokee Ochre Company as to the location of the line which separates the two lots. The plaintiff and the Cherokee Ochre Company employed separate surveyors to run the true line, the plaintiff’s-surveyor locating the line north of the line located by the surveyor -employed by the Cherokee Ochre Company, the two lines being fifty-four feet apart on the east and seventy-six feet apart on the west sides. The plaintiff contends for the northern and the Cherokee Ochre Company for the southern line as the true dividing boundary. The petition sets forth the bearings, monuments, and distances of the two lines, and these are also shown on the map made by plaintiff’s surveyor, which is attached as an exhibit to the petition. Thompson, Weinman & Company are extracting barytes from the disputed area. In the lease between plaintiff and Thompson, Weinman & Company it is provided that in the event any barytes is mined by the lessee near a boundary line of the leased premises, and a dispute arises with any adjacent landowner as to the location of such a line, the lessee shall furnish to the lessor monthly reports of the barytes taken and shipped by them from the disputed area, and deposit the royalties thereon to the credit of the lessor in a named bank, “there to remain on deposit until it is determined to whom such royalties belong.” In pursuance of this provision of their lease from plaintiff, Thompson, Weinman & Company have deposited in a bank in Cartersville, to the credit of the plaintiff, the sum of $1767, representing the royalties at the rate of $1 per ton on ore mined by Thompson, Weinman & Company in the contested area to the date of .the filing of the suit. This deposit, under the terms of the contract, is not subject to check by the plaintiff, but is to remain in bank “until it is determined to whom the same belongs.” The Cherokee Ochre Company claims this sum of money, and royalties on all barytes that may be mined by Thompson, Weinman & Company in the tract in question. Plaintiff and the Cherokee Ochre Company have been unable to agree upon the ownership of this sum of money, because of their disagreement as to the location of the true dividing line between their respective lots. The interests of Thompson, Weinman & Company are adverse to those of the plaintiff, in that, if it should be determined by the court that the line contended for by the Cherokee Ochre Company is the true line, Thompson, Weinman & Company will be called upon to pay to the Cherokee Ochre Company a royalty of only thirty-five cents per ton of barytes mined from the contested strip of land, instead of one dollar per ton to the plaintiff, as stipulated in the separate leases held by Thompson, Weinman & Company from the respective owners of the minerals in the two lots. The amendment to the petition merely alleges that the ease is a proper one for decision by an auditor, and asks that an auditor be appointed and the case submitted to him. The prayers of the petition are: (1) for a decree establishing the line as contended by the plaintiff; (2) that plaintiff recover the sum of money on deposit with the Cartersville bank, and all undeposited royalties that may have accrued on barytes mined by the lessees within the undisputed area, and that plaintiff be declared to be entitled to the royalties on all barytes that may in the future be extracted from said area; (3) that an accounting be had from Thompson, Weinman & Company as to all ores mined within the area up to the time of the trial; (4) that the court ascertain the true line, in the event it should be found that neither of those contended for is correct, and enter a decree accordingly; (5) in the event it should be ascertained that the true line is between the two disputed lines, that the court apportion the royalties between plaintiff and the Cherokee Ochre Company in accordance with the quantities of barytes mined above or below the true line and within the area in question; that to this end Thompson, Weininan & Company be ordered to account for the tonnage mined by them from the different parcels of the disputed tract; that plaintiff recover from its lessee, at the stipulated rate, any undeposited roj^alties that may have accrued on barytes extracted south of the said intermediate line and within the said tract; (6) for general relief, and for process. The defendants filed separate but identical demurrers, which were renewed, to the petition as amended. The grounds of the demurrers, in substance, were: (1) No cause of action is alleged. (£) Plaintiff has an adequate and complete remedy at law, by processioning- or ejectment. (3) The petition is multifarious, and sets up separate and distinct causes of action against separate and distinct persons. (4) There is a misjoinder of parties defendant, and a nonjoinder of the owners of the surface interests in the two lots. (5) The determination of the boundary line between the two lots will not alter the rights or duties of Thompson, Weinman & Company. (6) It does not appear from the petition that the Cherokee Ochre Company has made any demand on plaintiff for any portion or all the fund alleged to be deposited in the Cartersville bank to the credit of the plaintiff, and that plaintiff “ is in possession, through deposit,”' of the royalties taken from the tract in dispute. (7) The petition is vague and indefinite (in the respects pointed out in the demurrers). (8) There is no allegation as to the location of any intermediate line, and defendants , can not properly prepare to give evidence to the jury as to the true line, or anticipate what evidence relative to such possible line the plaintiff will produce at the trial. (9) There is no allegation showing any act or omission on the part of either of the defendants constituting a violation of any right of the plaintiff. The court by separate orders sustained each of the demurrers filed, and dismissed the petition. The plaintiff excepted.