Morgan v. Georgia Vitrified Brick & Clay Co.
| Decision Date | 04 September 1990 |
| Docket Number | No. A90A1524,A90A1524 |
| Citation | 397 S.E.2d 49,196 Ga.App. 779 |
| Parties | MORGAN, et al. v. GEORGIA VITRIFIED BRICK & CLAY COMPANY. |
| Court | Georgia Court of Appeals |
Jolles & Slaby, Isaac S. Jolles, Augusta, for appellants.
Dye, Miller, Tucker & Everitt, A. Zachery Everitt, Augusta, for appellee.
The plaintiffs Morgan and Gibson sued for damages arising from the defendant's mining of certain real property. They appeal dismissal of their complaint for failure to state a claim, OCGA § 9-11-12(b)(6).
The pleadings establish that T.L. Morgan and Gibson owned approximately 1.49 acres of land in Richmond County concerning which a 1943 federal court order awarded to defendant company the rights to "take all deposits of kaolin, shale and other underlying minerals," to "explore and exploit such deposits," and to "use the surface ... for that purpose together with the right of ingress and egress." In actively mining the property, defendant excavated portions of the top soil and overburden away from the land and removed kaolin and other minerals, with resulting depressions and irregular terrain.
Plaintiffs alleged that the property left in such condition had a present market value of $100, but that had defendant not "wrongfully altered the surface and terrain of the property and removed the top soil and the overburden ... so as to destroy the value of the property," the present market value would have been $27,500, total damages being $490,000.
The trial court concluded that state law regarding implicit rights of a fee simple mineral rights owner were clear and as stated in Brooke v. Dellinger, 193 Ga. 66 17 S.E.2d 178 (1941). It reasoned that under Brooke plaintiffs' complaint did not assert a cause of action but merely alleged that defendant should be liable for actions which were inherent and implicit in its mineral rights.
1. " Storm Systems v. Kidd, 157 Ga.App. 527, 528(3), 278 S.E.2d 109 (1981); OCGA § 9-11-12(b)(6). Wilson's and Gibson's complaint should not have been dismissed.
Brooke, supra 193 Ga. at 67, 17 S.E.2d 178 (headnote 2), as quoted by the trial court, provides that "[w]here the owners of ... minerals and mineral rights in conducting their mining operations removed soil, dirt, and timber away from the tract of land as to which such minerals and mineral rights were conveyed, the owner of the surface could not recover damages for such removal,...
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...factual allegations of his complaint, as required when determining the merits of a motion to dismiss. Morgan v. Vitrified Brick & Clay Co., 196 Ga.App. 779, 780(1), 397 S.E.2d 49 (1990). 1. The trial court properly dismissed Robin's claim under the Fair Business Practices Act, OCGA § 10-1-3......
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...under any state of provable facts should the complaint be dismissed.' (Cits.)" (Cit.)' [Cit.]" Morgan v. Ga. Vitrified Brick, etc., Co., 196 Ga.App. 779, 780(1), 397 S.E.2d 49 (1990). See OCGA § 9-11-12(b)(6). "An action for money had and received ... although legal in form, ... is founded ......
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