Harlow H. Oberbillig, as Administrator of the Estate of J. J. Oberbillig v. Bradley Mining Company

The appeal is from a summary judgment for the defendant in a diversity suit seeking (a) damages on account of defendant’s discontinuance of the operation of some mining claims and plaintiff’s loss of royalties as a result thereof, and (b) a decree of abandonment, forfeiture and reconveyance on the basis of the discontinuance and defendant’s refusal of plaintiff’s request to resume present operation of them.

About thirty patented lode and placer claims, located in the Yellow Pine Mining District in Valley County, Idaho, are involved. They had been conveyed by plaintiff’s predecessor in interest (United Mercury Mines Co.) to defendant (Bradley Mining Co.) by instrument dated December 31, 1941. At the time of the conveyance twenty-six of them had been patented and four or five more were thereafter patented by defendant, out of a substantial number of unpat-ented locations which were included in the conveyance. All of the unpatented claims, however, except the four or five subsequently patented, as mentioned, had through the period from 1955 to 1963 been deeded back by defendant.

The judgment made dismissal of the action with prejudice on the grounds (1) that under the conveyance…