De Fore v. United States

• Citation: 145 F. Supp. 484
• Decision Date: 28 June 1956
• Docket Number: No. 664.,664.
• Parties: William H. DE FORE, Mrs. P. S. Chambes, Mrs. E. C. Brown, Mrs. J. M. Peterson, M. T. DeFore, Ardell DeFore, J. H. Wimberly, Mrs. Addie W. Brown, Mrs. H. L. Symonds, Jr., and Georgia Kaolin Company, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Georgia

145 F. Supp. 484

William H. DE FORE, Mrs. P. S. Chambes, Mrs. E. C. Brown, Mrs. J. M. Peterson, M. T. DeFore, Ardell DeFore, J. H. Wimberly, Mrs. Addie W. Brown, Mrs. H. L. Symonds, Jr., and Georgia Kaolin Company, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 664.

United States District Court M. D. Georgia, Macon Division.

June 28, 1956.

John B. Harris, Jr., of Harris, Russell, Weaver & Watkins, Macon, Ga., for plaintiffs.

Frank O. Evans, U. S. Atty., and Floyd M. Buford, Asst. U. S. Atty., Macon, Ga., for defendant.

BOOTLE, District Judge.

On February 16, 1925, W. H. DeFore and Mrs. W. H. DeFore executed a mineral lease on 237 acres of land, more or less, in Twiggs County, Georgia, for a period of 25 years, or until February 16, 1950. The lease provided for the payment of ten cents a ton royalty and a guaranteed minimum rental of $100 per year. Through a series of transfers, the Georgia Kaolin Company acquired said lease on November 29, 1937.

In 1939, fifty holes were drilled on the property by the Georgia Kaolin Company and laboratory tests as to color and grit content of the clay were then made. In April, 1940, these holes were placed upon a map or plat and the tonnage of kaolin revealed by these drillings was also placed upon said plat. These tonnages appearing on said plat dated April 24, 1940, aggregate 645,900.

In the summer or fall of 1940, the City of Macon entered into negotiations with the Georgia Kaolin Company concerning the lease of various lands owned by Georgia Kaolin Company in fee and also lands on which Georgia Kaolin Company had a mineral lease.

The DeFore mineral lease had not been mined when these negotiations commenced, but because of the location of said property in connection with the main plant of Georgia Kaolin Company and the volume and type of clay involved, this was considered a valuable leasehold by the Georgia Kaolin Company and was held as a part of its reserves.

Due to the fixed termination date of the lease and the uncertainty of the length of time of military occupancy, it became a matter of prime concern to the Georgia Kaolin Company in these negotiations to have the DeFore lease extended during the time of the occupancy of these properties for military purposes. This concern of Georgia Kaolin Company was made known to representatives of the City of Macon and to representatives of the United States for whose use these lands were being leased. Representatives of the City of Macon, but not of the Government, assured the Georgia Kaolin Company that the representatives of the City of Macon would procure an extension of the DeFore mineral lease for five years. Though bona fide efforts were made along these lines by the City of Macon and some of its citizens, such efforts proved fruitless.

By a lease dated October, 1940, the exact date being left blank, the Georgia Kaolin Company leased to the City of Macon lands which it owned in fee and leasehold interests on various properties including the DeFore tract. This was in turn subleased to the United States. This lease from Georgia Kaolin Company as extended by supplemental agreement expired by its own terms on June 30, 1946.

The individual plaintiffs, other than William H. DeFore, now deceased and who has been stricken as a party plaintiff, are the owners of the fee simple title to said lands and they leased the same to the City of Macon by lease dated January 29, 1942, which lease as extended also expired on June 30, 1946. The rights of the City of Macon under said lease were transferred to the United States. All rights acquired by the United States in and to these lands were acquired by it so that said lands might be occupied and used by it in the training of its soldiers.

Upon the termination of hostilities in the fall of 1945, the Georgia Kaolin Company began making vigorous efforts to obtain a re-entry upon the DeFore property, pointing out both to the City of Macon and to the United States that there was not much time left to run under its lease with the DeFores, which lease was to expire on February 16, 1950. The DeFore property was not returned to Georgia Kaolin Company on June 30, 1946, the Government contending that it had not completed the decontamination of it. Georgia Kaolin Company was allowed by the United States to go upon the property in December of 1946. Stripping was commenced and continued until on or about January 28, 1947, when the equipment of Georgia Kaolin Company was required by the United States to be moved off the property. Statements were made by representatives of the United States at that time that the decontamination work done on the property had been unsatisfactory and that further efforts along these lines had to be made. In addition, it was stated by representatives of the United States that it was unsafe for men and machinery of Georgia Kaolin Company to remain on the property until this additional work was done.

At this time, Georgia Kaolin Company was faced with the decision whether to abandon the lease with the DeFores or seek an extension of the mineral lease. It chose the latter course and began negotiations with the owners of the DeFore property, who, because of the death of Mrs. W. H. Defore sometime previously, numbered nine persons.

On or about March 8, 1947, the Georgia Kaolin Company was finally allowed to go back upon the DeFore property and carry on mining operations on as full a scale as it desired.

The extension of the mineral lease with the DeFores was executed on June 18, 1947, for a period ending February 16, 1960. The terms of the extension abrogated the terms of the original mineral lease and provided a tonnage royalty at the rate of 18 cents per ton and provided for the payment of $50 per month minimum royalty for each interest outstanding; the tonnage figures to be credited against this minimum royalty. These new provisions of the lease were made effective as of July 1, 1947 and continue until February 16, 1960.

Prior to the execution of this instrument on June 18, 1947, the Georgia Kaolin Company had purchased a 2/9 undivided interest of the fee, and has sometime subsequently acquired an additional 1/9 undivided interest of the fee.

A mine was opened on the DeFore property in 1947 and tonnages of kaolin have been used continuously from said mine and are now being used from said mine under the terms and provisions of the new lease. Only 119,000 tons were mined from said property through December, 1950.

This action was instituted under an Act of Congress known as Public Law 730, Act June 19, 1948, 62 Stat. 566, conferring jurisdiction upon this Court "to hear, determine, and render monetary judgment upon the several claims (1) of the city of Macon with respect to lands owned by the city and leased by the said city to the United States for use by the Army as a part of the site of Camp Wheeler, Georgia, for damages for the breach, if any, of its leases to the United States and (2) of the owners in fee simple and the owners of leasehold interests, except the city of Macon, in and to lands leased by them to the city of Macon, Georgia and subleased by the city to the United States for such use." The Act provides further "In the determination of the claims of the owners of the fee-simple titles and of leasehold interests in lands leased by them to the city of Macon and subleased by said city to the United States, the damages allowed, if any, shall be limited to the amounts to which such owners would have been entitled under the terms and provisions of their leases to the city of Macon: Provided, That claims of fee owners and leasehold owners, excepting the city of Macon, relating to the same property shall be joined in one action and the amount of damages allowed, if any, shall not exceed the amount that could have been recovered had all the interests in such property been vested in one party. The claims of the city of Macon with respect to lands owned by it shall be determined under the terms and provisions of its leases of such lands to the United States. This Act shall be construed to waive the lack of privity of contract between the United States and the said fee owners or between the United States and the said leasehold owners; to waive the requirement of such leases to the city of Macon of notice by the lessors to the city in order for claims of restoration to be asserted, and to waive the immunity from suit of the United States in favor of the parties and with respect to the claims described in this Act, but not otherwise to affect any rights of the parties."

In this action the plaintiffs seek damages for alleged violations of the terms of their respective leases to the City of Macon, which leases were transferred to the United States and the obligations thereof assumed by the United States. The lease provisions relied upon are as follows:

"and the Lessee, if required by the Lessor, shall, before the expiration of this lease, as the same is subject to renewal, restore the premises to the same condition as that existing at the time of entering upon the same under this lease, reasonable and ordinary wear and tear and damage by the elements or by circumstances over which the Lessee has no control, excepted, and destruction of timber occasioned by or through range firing or through the interference through the use of which it is intended this property is to be put, also excepted". (The above is the language of the lease from the fee owners to the City, the lease from Georgia Kaolin Company to the City being the same except that therein the words "or through the interference with the use to which it is intended this property is to be put" are stricken.)

and "any and all claims for damage to the leased premises and under the terms hereof are determinable according to the value of said premises as of the date of this lease, and no such damage shall be determined upon the basis of the appreciated value of said premises occasioned by the use of

...