*1 et Plaintiffs al., Alvin C. BJERKEN
and Appellants,
v. COMPANY,
AMES SAND AND GRAVEL Construction and Schultz & . and Respondents Defendants Co.,
Civ. No. 8710.
Supreme of North Dakota. Court 22, 1971.
June 2, Sept.
Rehearings Denied 1971.
3 n 7 up- Construction to enter Bjerkens, on certain purpose removing therefrom in $46,270.01. the amount Material be removed cred- was *3 judgment per ited to at rate $.20 yard. Trial novo is demanded. cubic de Bjerkens, through The their amended 11, 1970, complaint of March assert S, 1957, April they prop- on leased certain years for ten erty to Ames Sand and Gravel Lindsay Company, Con- and Schultz & purpose struction of min- for ing gravel.
They further assert this lease was 1, 1958, February on assigned Clay County and Sand and Gravel assignment writing said was reduced to in 1, January agreement an dated 1959. pertinent allegations the amend- The paragraphs complaint ed are in contained through X XVII thereof: "X. provides
“That the lease pay and remove for lessee shall 1,250,000 yards cubic a minimum of during year lease gravel and the ten sand yard per period price at $.20 $250,- payment of for a minimum total year term the lease. over ten 000.00 Stewart, Solberg, Fargo, for Anderson & “XI.
plaintiffs appellants. $239,339.84 has been Backes, Dosland, “That total Huseby Fargo, and & Minn., plaintiffs defendant Schultz Moorhead, paid to Nordhougen, Dosland & Company and Lindsay respondent Construction for Ames Sand Clay County Co. Sand assignee & Gravel Company, Inc. payments have been no and that other Knox, respondent Lanier Fargo, & That the sum of plaintiffs. received Construction Co. owing $10,660.16 is still due and mini- with the plaintiffs accordance required by mum ERICKSTAD, Judge. agreement. plaintiffs, shall hereinafter whom we Bjerkens, appeal refer from to as the “XII. judgment of Cass the district court of overbur- 158,350 “That County, April 23, 1970, deter- dated their by defendants removed were den mined the of the defendant Schultz right
369 assignee gravel access gain yards’ order to of material and they overburden has deposits and removed approximately cu- premises in bic yards un- been distributed about the of choice rock and aggregate top unsightly piles even and have abandoned the reject- ed unopened de- valuable sand their processing plant rather than terms of the remove posits violation of from the as was re- quired by agreement. agreement. There- fore, plaintiffs are entitled to recover from the defendants cost of loading “XIII. the said reject sand and removing it from plaintiffs “That to recover entitled are alternative, or in the defendants, hauling the cost of cost of removing it prem- to a site on the *4 pit out’ on said overburden to a ‘worked ises which will not damaged due to leveling grading and and the covering of gravel deposits. unmined dumped it is into said the overburden as land, pit restore the
‘worked out’ so as to “XVI. original nearly possible, to its con- “That failed defendants to remove hauling of such That the dition. cost gravel processing equipment at the ter- $20,000.00. leveling and is mination of the aforementioned lease and equipment that such nowis forfeited to “XIV. Ranch, Inc., B-B because of defendants’ failure to remove it a within reasonable their assignee, “That defendants or time expiration after the of the lease and process mining said sand and for the reason that alternative said use, separat- processing it for gravel and equipment permanent constitutes a struc- ag- and rock and ed removed the coarse ture and thereby part has become part most valuable gregate which is the real estate. thereof, large pile of and accumulated a proc- rejected their sand which was “XVII. volume of said essing plant. That the 293,847 yards of cubic pile of sand is “The defendants’ failure to account 271,875 piled near yards is which stockpiled for all and material mined has 21,972 yards has open pit and an employment of a necessitated sur- open pit said into dumped back been veyor to measure the sand and volume yet depleted or ‘worked is not gravel prem- on and abandoned mined 293,847 sand That out’. paid plaintiffs have ex- ises. That equal of sand. tons' penses survey in the amount of of such
$1,000.00 this and are entitled recover from the defendants.” “XV. complaint The amended concludes with large pile rejected “That the of sand prayer this for relief: processing plant
from said covers valu- $10,660.16 defendants’ de- “1. unopened gravel deposits able sand and requir- ficiency open pit by and contaminates the mix- agreement. ed ing rejected with sand undisturbed deposits in open pit pile said and that said leveling, redistribut- $20,000.00 “2. reject sand be removed to allow must placed improperly over- ing removing and gravel deposits access to sand burden. the terms of the covers. That hauling loading and $70,000.00for “3. required that defendants un- where 1,250,- to a location reject sand pay ‘remove and minimum of for a deposits not be covered will “V. mined sand. said separate “That the defendants did measuring reject sand certain amount of $1,000.00 for cost of “4. mining operations but that course of reject sand. pile of the terms of all of was done same within equipment all That structures “5. contemplated fully under said lease be ad- located presently parties by all terms of by defend- forfeited and declared judged thereto; plaintiffs at all times Ranch, Inc. plaintiff B-B ants to sands, reject see the amount could being piled they where were knew their and disbursements For costs “6. any com- dumped and at time made no after action and interest defendants; that the cost plaint to day April, 1967. the 5th greatly reject removal of such sand is further relief For such other “7. complaint and as a exaggerated in the equitable just Court deem as the fact, a definite has matter -of said sand premises.” in the and value. use answer, Lindsay Con- its In has mined that it Company asserts struction “VI. *5 and, 828,879 yards only “That the did defendants [not]
hence, overpaid has the that proc- gravel have not removed certain $73,564. approximately equipment simple reason essing lawsuit, trial During the of the they are above that entitled to the still Company, whom Lindsay Construction yards of of cubic described thousands to as Schultz & refer we shall hereinafter gravel they paid have for and which figure Company, that this Lindsay conceded removed; period of not that the have it had instead that was error asserted run has time for which the lease was to $69,597.97. overpaid expired rights but the under that that expired. have lease coun- parts the answer Pertinent read: terclaim “VII.
“HI. regularly “That ac- defendants Paragraph Eight “Specifically denies plaintiffs all sand and counted to for and affirma- Complaint herein (8) of gravel said mined the terms of under only mineid tively alleges they have any plaintiffs expenses materials and of total is the obli- surveying incurred for same ap- overpaid plaintiffs hence have gation plaintiffs. of the $73,564.00. proximate sum of “COUNTERCLAIM “IV. plain- against “For Counterclaim remove some “That the did defendants herein, defendant, tiffs de- amount over-burden Lindsay Co., alleges: Construction within posits, but that removed all were of the contemplation the normal “I. herein; dur- at all times agreement “Incorporates (1), Paragraphs One fully lease, aware plaintiffs were ing (4), (5), Five (2), (3), Three Four Two removal, overbur- saw where said said (9) of the (6), (7), Six Seven Nine and at no time being den was distributed fully though set Complaint herein complaint defendants made forth hereunder. same. about fendant Schultz & “ii. Construction Company; plaintiff B-B is a Ranch have at all “That counterclaimants corporation, Minnesota isas the defendant performed times under the terms of Ames Sand and Company, Gravel Inc. herein; yearly leases because The latter company has an office and does payment requirements under extensive business in North Dakota. lease, the terms of the Counterclaimants plaintiffs, whom we have denominated actually paid plaintiffs some have purposes of discussion as the Bjerkens, $73,564.00 tonnage more than contend that property because the involved mined; they yardage have in this action is situated in Minnesota and plaintiffs not allowed Counter- the breach of the lease occurred claimants to the amount ton- remove Minnesota, the substantive law they have nage yardage that or cubic Minnesota must be applied in this case. for; that, fact, paid plain- matter Neither of the has defendants taken issue , premises to again leased tiffs have with this contention. defendant, Ames Sand oppor- foreclosing 9-07-11, Pertinent is N.D.C.C., Section tunity to be able this Counterclaimant reads: sand and amounts of to remove said governs. “9-07-11. What law con-—A gravel. tract is interpreted to be according to usage law and place where it performed, is to be or if it does not indi- “III. cate a place performance, according approxi- has “That Counterclaimant to the law and usage place where mining equip- $100,000.00worth of mately it made.” plaintiffs ment *6 them to remove.” refuse to allow This by contract its very nature performed was to be performed and was lawsuit, the the trial of Schultz During Minnesota; within the of according State Paragraph Lindsay abandoned Company & ly, we must apply the substantive law and III of Counterclaim. the usage of Minnesota. See Nordenstrom v. Swedberg, 848, 143 852 (N.D.1966). N.W.2d Ames and Gravel Sand generally in filed an answer which essence Bjerkens The that basic assert three complaint and allegations of the denies the questions are of all determinative the issues 1, February by assignment that of asserts in They questions this case. state those 1959, 1, 1958, agreement January dated as follows: right, interest assigned all of its title 1957, Clay 5, lease, April to in the dated the obligation “1. What is of the lessee Company, which County Sand prem- regarding the condition by the to was consented assignment ises at the termination the lease? Bjerkens. any rights Does “2. the lessee against a cross-claim It further asserts the termination survive Lindsay Company for sum lease; so, long and if for how against it in favor may adjudged that rights continue? do such Bjerkens. require is- agreement Does attempt we to determine “3. Before by lessee de- we must pleadings, sues raised Alvin, rights, regard other in to applies this case. without cide what law Bjerken obligations or contained Wallace, privileges Alpha, and Woodrow residents, in is the de- said lease?” are Dakota North 372
They regard in assert first and waste material as it deem neces- sary questions operations these that in its at such reasonable provides only general guidance as to the location on the demised as the disposition They overburden. con- of the Lessor shall direct.” tend, however, any type that the lessee of in The trial court effect found that there property required real to leave the proof Lindsay was no Com- that Schultz & property reasonably good in condition and pany placed reject overburden and sand that the lessees in the instant case have improper place in an it failed to property in left such condition. Bjerkens given by follow instructions They pile contend that re- sand placement as to the of either. jected processing plant from the lessee’s blight constitutes an intolerable on the support in find that the evidence We property and that it must be moved respect Bjerken allegations in to underlying gravel someone before improper and re- placement of overburden deposits They can be mined. concede that ject sand is weak. use, the sand has some as evidenced Applying the rule that the trial Lindsay fact that Company Schultz & did de are en findings court’s a trial novo remove some of it from the dur- appreciable weight, especially when titled to ing period They at a price. lesser appeared and testified the witnesses have assert, however, the amount of this court, person con before the trial we material which has accumulated would findings re clude that the trial court’s preclude disposition of it within a rea- spect this issue are Sorenson correct. sonable time so to allow access to un- Leslie, syllabus (1971), v. 186 N.W.2d derlying deposits, and that therefore the I- only must be moved and that it is If logical responsibility that this fall on those question, regarding the sur- The second placed who it there. beyond rights the ex- vival of the lessee’s validity piration lease, relates to the Lindsay Company contends of the counterclaim of Schultz & upon it was Bjerkens incumbent ownership and to the issue affirmatively show the overburden mining equipment. reject put sand were in improper places ruling, assert the trial court’s under the terms of the contract *7 & allowed the counterclaim of Schultz relationship the parties of over the ten- Lindsay Company, per- has the effect of year period of time. Pertinent to this petuating right the lessee’s accumulated issue a part is paragraph of (3) para- and period to remove for an indefinite graph lease, (5) of the which read: They places of time. assert that this the * * * “(3) taken overburden property position he owner in a where off sand, in order to obtain access to said rights could never assume that the gravel, rock placed and stone shall be prior extinguished, and a lessees are that the worked portion out pit, as is time, any might, subjected new lessee at be the usual customary practice and when entry prior They to the of tenant. assert mining however, for gravel, provided, logic that and common sense dictate that that should the pit owners desire the any right stockpile to and remove material to be open, they left shall priv- have the at a later date be confined must ilege Lessee, to so direct the and which term of the and of that the law event the Lessee place will the over- regarding mining equipment Minnesota and burden at some place other convenient right the to remove it after the termina- on said tracts. of a equipment tion lease is that the must “(5) The right Lessee shall prior have the be removed at or to the termination sand, pile
to gravel, rock, stock stone They the if lease. further assert that removal, option may, during for year, a reasonable time was allowed it the first re- pay move reasonability 35,000 limits of were far ex- the for minimum of yards cubic this gravel, option ceeded case. but if the exercised, the balance of the first Lindsay Company contends year’s minimum in the amount of question the this determination of yards shall be added to the mini- entirely upon rests of the lease the terms mum requirement succeeding for if and common sense. It asserts that years, it being understood agreed ambiguous ambiguity lease is must the Lessee shall pay remove and Bjerkens against be construed and in 1,250,000 for a minimum Lindsay Company favor Schultz & for within the years first ten of this lease. prepared by the reason that the lease was * * * Bjerkens. It concludes that inasmuch “(8) provide period the lease does not Any “(c) surplus pile stock of sand within time or aggregate remaining on premises said removed, equipment must be it is entitled in an amount over and above the amount to a reasonable time in to do this of material premises removed from said and that a reasonable has time not been during year, the calendar and the amount exceeded. It further asserts gravel, piled and stone rock stock Bjerkens have not been harmed premises said as of December 31st of leaving equipment premises, on the year, each the Lessee shall be charged as evidenced fact 20‡ therefor at per rate of Lindsay Company has equipment sold that yard, and accounting payment to Ames Sand and therefor shall sixty be made within (60) to whom the have now leased days thereafter, provided, however, that premises. when surplus such has paid been for at Pertinent to the determination of the end year, of one and if the same question paragraphs are (5), surplus (2), (7), (8) remains at the end other (c), (12) year, and (14) of the lease. requirement there shall be no surplus for such as was on shall have “(2) The Lessee hereunder premises on December 31st of the place right upon prior year. structures as plant, equipment or such necessary for the deemed the Lessee “(12) In the event at the term- of its
conduct business required mínimums fails to remove any renewal lease, this lease or they ination have by the terms of this right to remove shall have thereof mínimums right accumulate such plant, such from such later date. remove same at a they may equipment or structures as any default occurs “(14) In event placed thereon. of this conditions under the terms and *8 “(5) right The Lessee have the shall Lessee, by the performed be to sand, rock, pile gravel, to stock stone right give to Lessors shall have may and waste material deem neces- as it writing in to the day thirty notice (30) sary operations in its such at reasonable any of Lessee, the removal demanding premises location on the demised as the default, the event the Lessee such and in shall Lessor direct. default correct such fails to remove or period, thirty-day the Lessors within said “(7) agrees The Lessee and covenants then, option, this terminate can at their pay it will for a mini- remove and of in the terms If occurs yards lease. default mum of of cubic is terminated same during years this lease each of the ten of the Lessors, be no further shall there At existence this the Lessee’s lease. 374 Data Products Cor- Corporation v. Telex to the available remedies or rights 288, 681 N.W.2d 271 Minn. 135 poration,
Lessors, except the forfeiture decision 685, Minnesota from an earlier at piles of the stock Lease and of Dunnell: based on premises, demised existing then ninety (90) shall Lessee and the “ any plant, of law elementary principle to remove is an days ‘It within on said equipment placed must be construed that a contract structures or parties must said Lessee.” whole. The intention of instrument from entire gathered As far clauses. and not isolated part is our view the last It reasonably to be con- possible it is as is paragraph (7) of the sentence second parts. its all of strued so as to harmonize reads, lease, Lessee of the “That the ” ed., Dunnell, Dig., 3 1823.’ 4 § pay for a minimum of shall remove and 1,250,000 yards within the first ten lease,”
years
requires the lessee to
of this
however,
opinion,
are of the
We
$250,000
only pay
not
the lessors within
to
a reasonable
that the lessee was entitled to
ten-year period,
but also to remove
equipment,
remove its
time within which to
ten-year
from the
within that
equipment
light
nature
in
of the
1,250,000
period
yards
ma
gain
was
the fact that if the lessee
to
notwithstanding
terial. This we conclude
of the entire term of
benefit
language
paragraph
in
of the
(12)
day
through
last
equipment
needed the
lease, which states
the lessee shall
right the lessee had not
of the lease. This
right
“have a
to accumulate such minimums withstanding
have used the
that it
and remove same at a later date.” It is our
equipment,
Bjerkens,
as asserted
view that
the minimums referred
in
to
year and one half of the lease.
for the last
paragraph
yearly
(12) relate to
minimums
$25,000
material,
para
worth of
whereas
Bjerkens
pursuant
assert that
graph (7) relates to the
contract
ninety days
paragraph
to
(14)
obligating the lessee
pay
to
remove
would be
time
to
a reasonable
within which
1,250,000
minimum of
within
equipment
remove the
that' time
years
the first
ten
of the lease. This
greatly
has
been
exceeded
this case. A
conclusion is consistent with the view ex
paragraph (14)
review of
causes us to
pressed
Pillsbury
Flour Mills
applies only in
believe that it
the event
Superior
Mines,
v. Lake
Consolidated Iron
only
a default and
after
lessors have
254,
178 Minn.
(Minn.1929),
of sales. case, Under the circumstances of this Mining Mines also See 54 Am.Jur.2d equipment we find no abandonment (1971).
§ right possession and no ownership of it. the mean determination of Our relative accumula
ing of contract *9 question asserted third basic The a tion is consistent with of minimums ap on this decided Bjerkens to be by the in the quoted familiar rule of construction agreement requires peal is whether Supreme decision Minnesota Court payment the lessee without ment. a minimum To them it is inconceivable that any privileges or rights, to other this could regard have been the intent of the parties provided in the obligations for inasmuch as Bjerkens lease. would
have had no inducement to consent to such They modification. regard believe it Bjerkens The contend this that is more probable that the provided agreed defendants ten-percent discount for buy to plaintiffs agreed permissible only paragraph (9) was after to sell reject sand at a price lesser material had been so that plaintiffs the minimum amount of might greater achieve a purchased only year each and then after income from the property without proper Para- affecting consultation with the lessors. the minimum payment due under the graph (9) lease. reads: Defendant Ames agreed is Sand and “(9) It that in the event the Gravel Com- pany, Inc., points Lessee, in out that Lindsay order obtain substantial to Mr. contract, Lindsay required price is to lower its testified Bjerkens that per yard agreed regularly below its estab- that reject sand paid would be price price -for being, pay- lished a time at of 8.65^ 2( n per per tjiat ton. It asserts yard now, ment of Bjerkens to be made without producing any, evidence, to the urge Lessors be in the reduced this was a amount, collateral proportionate same not ex- to due to them addition Any ceed to the reduction above minimum amount 10%. 10% called for under the shall be open negotiation by points to both contract. Ames out that the parties.” Bjerkens offered no evidence
relative to negotiations to dispute that the oral contract was The different from evidence submitted in regard this stated Lindsay. Mr. by one of the officers of Lind- Schultz & say Company was competition was
such necessary that it was company for testify Mr. did to price reduce its Bjerkens permit company to secure to agreed substantial contracts. In light apply payments reject of that evidence and the for sand toward last sentence of paragraph testimony (9),.which the minimum. His was that re- quires negotiation parties regular accountings between the were made to the reductions percent, above the ten-year period ten a without we con- over clude ten-percent that this objection reporting part reduction taken on their without negotiation purchase reject consultation or of the sand at the was proper. part accounting lower rate as made
under the written lease.
Reject
purchased during
sand was
record,
light
we
In
of this state of
the term
pro
of the lease at a rate not
reject
payments for the
conclude that the
Bjerkens argue
vided for in the
The
lease.
apply
payment
sand 'do not
toward
payment
reject
made for the
sand
ten-year
$250,000.
minimum of
at
provided
the lower rate not
for in the
written contract is not
credited as
judgment
the trial court is there-
$250,000
toward the
remanded,
fore reversed and the case
guaranteed
ten-year period. They
over the
deter-
with instructions to the trial court to
contend
interpretation
Bjerkens by the
mine
due the
the amount
Lindsay Company
urged by
transaction
defendants
the defendants
accepted by
and Ames Sand and
the trial court results in
pursuant
requirements
original
agree-
modification of the
to the minimum
*10
payments
Agency,
titled
considering the
Interstate Collection
Inc. v.
without
Kuntz,
Lindsay Company for