RUSSELL v. JOHNS MANVILLE CO

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Court of Appeal, Fifth District, California.

G. M. RUSSELL et al., Plaintiffs and Appellants, v. JOHNS MANVILLE CO. et al., Defendants and Respondents.

Civ. 1309.

Decided: November 02, 1971

Rowell, Lamberson, Thomas & Hiber, Fresno, for plaintiffs-appellants. Lonergan, Jordan, Gresham & Varner, San Bernardino, for defendants-respondents.

OPINION AND MODIFICATION OF OPINION ON DENIAL OF REHEARING

In their petition for rehearing, appellants argue that the opinion ignores their contention that the instant case is distinguishable from Acme Oil and Mining Co. v. Williams, 140 Cal. 681, 74 P. 296, and the other cases upon which we relied because the Koski lease specifically required the lessors to give appellants a 30-day notice of default before declaring a forfeiture; this they failed to do. However, as we have stated, the implied agreement that appellants were to engage in mining activities with reasonable promptness and to proceed with such activities with reasonable diligence was a condition, not a covenant, and appellants' unconscionable failure to comply with the condition resulted in an abandonment and forfeiture of their lease by operation of law. Also, appellants have consistently taken the position that they were not obligated to engage in mining activities and that they were not in default of any provision of the lease when they instituted the action in the court below to quiet title to the mining claims in question. It is manifest that a notice to cure the alleged ‘default’ would have been to no avail.

THE COURT