Citations
- 929 F. Supp. 1508
Full opinion text
ORDER
OWENS, District Judge.
Before the court is defendant’s motion for summary judgment. After the normal briefing schedule had been completed, the court asked the parties to submit proposed findings of fact and conclusions of law outlining their respective positions. The court then held oral argument based on the contentions raised in those submissions. Having carefully considered all of the foregoing, the relevant caselaw, and the record as a whole, the court issues the following order.
I. UNDISPUTED FACTS
This case involves two mining leases. On October 11, 1960, E. Pierce Wood and defendant entered a lease, pursuant to which defendant was obligated to pay
a royalty of Forty (40(C) cents for each cubic yard of crude kaolin mined and removed from said premises for processing and sale. The number of cubic yards on which royalties are payable shall be determined from cross section surveys of each pit taken at fifty (50) foot intervals and made by an independent surveyor as of January 1 and July 1 of each year (provided that no such survey will be required unless some materials for which royalties are payable was mined from the pit during the preceding six (6) months). The cost of such surveys shall be paid by [defendant]. Owner shall have the right at any reasonable time during working hours to enter upon the premises and inspect the workings thereon for the purpose of verifying compliance with the terms hereof. Such earned royalties shall be applied first to reimburse [defendant] for the advance payments that have been made as provided in Paragraph 5, and the balance, if any, paid to Owner monthly, beginning on the first of the second month after mining is begun, it being provided that monthly payments be made on the basis of quantities estimated by [defendant] with a proper calculation and settlement each month.
Defendant’s SJM, exh. A (“E.P. Wood Lease”). Plaintiffs are the successors in interest to E. Pierce Wood under this lease.
Under the second of these leases (“Nor-wood”) entered on May 24, 1972, defendant agreed to pay plaintiffs
a royalty of seventy cents (70