The present action was commenced on 3 December, 192S. There was an action for injunction heretofore between the same parties. 189 N. C., 1.
A demurrer admits the allegations of the complaint and all reasonable inferences to be drawn therefrom under a liberal construction of its terms, which must be upheld unless wholly insufficient. The pertinent parts of the mining contract to the controversy must be considered. From a careful examination of the contract, after 15 June, 1924, the five-year period having expired, it was clearly the intention of the parties that the mining for gravel, sand and stone should continue as heretofore, one cent per ton paid for all gravel, sand and stone removed from the land payable quarterly, and any default in the payment for six months, the title and interest in the mining contract shall revert to plaintiffs and their legal representatives. The contract further pro'vided that the grantee should keep a true and strict account of all gravel, sand and stone removed from the land and furnish an itemized statement quarterly from 15 June, 1919', to plaintiffs. This action is brought over a year after the first quarterly period of default.
In Conrad v. Morehead, 89 N. C., p. 35, Merrimon, J., construing a similar mining contract, said: “In the case before us the lessee covenanted expressly to pay the lessor ‘One-tenth part of all the gold, silver and other metals that may be procured from said land, and to account for the same quarterly, if so required.’ There is no express covenant that the lessee shall work the mine continuously, or in any particular way, or at all; but there is manifestly an implied covenant on the part of the lessee that he will work it as such mines are usually worked, and with ordinary diligence, under the surrounding circumstances; not, indeed, simply for his own advantage and profit, but as well to the end the lessor may have his toll ‘quarterly, if he shall so require,’ or at such longer intervals as he may see fit to prescribe. Taylor, L. & T., secs. 252, 253, 421; Rosley v. Walker, 5 Term Rep., 373; 4 Wait, Ac. & Def., 203, 246; Arch., 68. Such covenant arises by necessary implication. It would be unjust and unreasonable, and contravene the nature and spirit of the lease to allow the lessee to continue to hold his term a considerable length of time, without making any effort at all to mine for gold and other metals. Such a construction of the rights of the *634parties would enable him to prevent tbe lessor from getting his tolls under the express covenant to pay the same, and deprive him of all opportunity to work the mine himself, or permit, others to do so. The law does not tolerate such practical absurdity, nor will it permit the possibility of such injustice. . . . (p. 36.) It is of the essence of the contract, necessarily implied, that the lessee should work the mine with reasonable diligence, or surrender the lease, as he had the right to do by express stipulation, so that the lessor might, in the first alternative get the tolls; or, in the other, work the mine himself, or sell, or let it to some other person, in his discretion. This construction is reasonable and just, and in the absence of any express stipulation in respect to working the mine, the law implies that this was the contract between the lessor and lessee.” Maxwell v. Todd, 112 N. C., 687; Hawhins v. Pepper, 117 N. C., 407.
In the mining contract there is a reverter clause in favor of plaintiffs. This is enforceable by plaintiffs. Sharpe v. R. R., 190 N. C., p. 350.
The defendants now have possession of the. land under the mining contract for the purpose of mining for gravel, sand and stone. The plaintiffs are entitled to a royalty since 15 June, 1924, of one cent a ton for all that is mined since the expiration of the five-year period. This mining contract is valuable to plaintiffs as well as to defendant. Under a contract, as in the present case, for a particular mining industry to be carried on, the defendant cannot keep the land and refuse to go on with the operation. Such a course would destroy plaintiffs’ royalty and render their land valueless. Defendant will not mine, and plaintiffs are not allowed to do so. It would be the old fable of the “dog in the manger.” For such a contingency we think the contract makes provision. Under the five-year lease contract, the payments are to be made quarterly. It is provided in the latter part of the lease contract, in reference to the one cent per ton to be paid after the five-year period, “the several sums of money or royalties hereinbefore provided for and at the times hereinbefore specified in lieu of paying same to grantors,” the fund may be deposited with the Page Trust Company, for the benefit of plaintiffs. The lease contract by fair implication provided that the mine must be operated and quarterly royalty is to be paid, and true and strict account kept of all gravel, sand and stone removed from the land and an itemized statement furnished plaintiffs quarterly. It is true the contract provides that this shall not be paid until removed from theTand. But, when defendant refuses to carry on its mining operations according to contract with reasonable diligence, and does not mine so it can sell and pay .the royalty, it waives its right by omission, abandonment and neglect, and the plaintiffs can, after *635waiting six months after these quarterly periods, as it has done in this case according to the contract, bring an action under the mining contract for reverter, especially provided by the contract, and to remove the cloud on the title to the land. Any other construction, from the entire contract would work a grave injustice to plaintiffs never contemplated by the parties and be inequitable and unconscionable. The position here taken is fully borne out by the authorities in this State and elsewhere.
The question arises, does the plaintiffs’ complaint, by reasonable inference, allege facts sufficient to come within this position here taken? We think so.
It is alleged, among other things, that the defendants by nonuse and default have deprived plaintiffs of the use and enjoyment of their land. We think this allegation makes out a cause of action. It is a statement of a good cause of action, from the view we take of the mining contract. If the statement of a good cause of action is too general, a bill of particulars or a motion more definite is allowed under our statutes. C. S., 534-537; Power Co. v. Elizabeth City, 188 N. C., 285.
In Hawkins v. Pepper, supra, Avery, J., speaking to the question, says: “It is a well settled principle that where an estate or interest in land is conveyed for a nominal consideration subsequent which constitutes the consideration on the part of the grantor for executing the deed conveying it, a reasonable time will be allowed for its performance, after which the courts will adjudge that the grantee, if he has taken no steps looking to and giving promise of a compliance with it, has abandoned the purpose to perform it. Ross v. Tremaine, 2 Met. (Mass.), 495; Allen v. Howe, 105 Mass., 241; 6 A. & E. Enc., p. 903, note 1; 2 Washburn (5 ed.), p. 12, star pp. 449-450; Austin v. Cambridgeport Parish, 21 Pick. (Mass.), 215.”
In 1 Tiffany on Real Property (2 ed.), see. 254, p. 870, it is said: “By some decisions, if the rent is, by the terms of the lease, entirely dependent on the extraction of ore, a covenant on the part of the lessee is to be implied that he will work the claim or mine with reasonable diligence, and occasionally it has been decided that, although there is no express provision to that effect, the lessor may assert a forfeiture for failure to work. It would, however, be more in accord with principle to base the rights of the lessor in such case, as to resumption of-possession, upon the theory that the failure to work involves an offer to relinquish possession which the lessor may accept, thereby effecting a surrender by operation of law, or upon the theory that a promise to work the mine is to be implied, and that upon the lessee’s repudiation of that promise the other party may rescind and recover the consideration for the promise, that is, the possession of the land.”
*636It is well settled tbat certain apt words will be beld to create a condition subsequent and work a forfeiture. Hall v. Quinn, 190 N. C., 326; Shields v. Harris, ibid., 520; Cook v. Sink, ibid., 629. Tbe contract in tbe present case bas an express reverter clause.
For tbe reasons given the demurrer is overruled and tbe judgment of tbe court below
Reversed.