(concurring) .
From the allegations in the amended complaint it appears that plaintiff is an individual landowner who leased her farm for the production and removal of commercial crushed limestone on a ton-royalty basis and that in the first instance the lessee was a partnership, later incorporated and is presently owned and controlled by defendant Rogers. The lease was not made a part of the complaint and does not appear in the record. However, Paragraph 10 of the amended complaint stated:
“10. That the standard agreements between stone crushers and landowners provide a right to the crusher to refrain from removing and crushing stone for any reason at any time, and during such period to pay only a modest minimum stipend for the unexercised privilege of removing and crushing limestone.” (Emphasis added.)
It further appears from the allegations that the minimum payment for nonpro-duction was $138.89 per month; that Rogers, as the present holder of the lease, closed the quarry on plaintiff’s land and removed the equipment and then opened a quarry and began a new crushed stone operation on land adjoining plaintiff and acquired by Rogers for that purpose; and that plaintiff has been paid in full the minimum monthly payments provided in the lease.
The allegations charging violation of the Anti-Trust Act are fully set out in the majority opinion and need not be repeated here.
I have entertained serious doubt whether plaintiff, as a nonoperating owner-lessor of mineral rights, has alleged an injury to herself sufficient to enable her to maintain a private antitrust suit to recover treble damages therefor. It would seem to appear from the complaint that in her lease she provided for the specific contingency of non-operation for any reason at any time by naming the minimum monthly payment she was to be paid. The lessee stopped production and she admits receiving payment of the agreed amount. She now claims damages for loss of royalties she would have received had the lease been operated.
This defense was raised by defendants and resisted by plaintiff in the district court and Judge Holder, in his extended and thorough memorandum opinion, decided this issue adversely to defendants, saying: “Neither of the parties’ briefs *278cite Judge Swaim’s opinion in the case of Congress Building Corporation v. Loew’s, Incorporated, 7 Cir., 246 F.2d 587, decided May 31, 1957, and rehearing denied July 29, 1957, which is conclusive against the defendants and the authorities relied upon in their briefs.” Defendants do not present this issue further on appeal and for that reason the majority opinion properly makes no reference to it. I have grave concern that the holding in the Congress case goes too far. It is to be noted that one of the members of this court on the panel in that case concurred only in the result thereof, and that the opinion itself takes note of the fact that the Third Circuit held to the contrary in Melrose Realty Co. v. Loew’s, Incorporated, 3 Cir., 1956, 234 F.2d 518 and with Chief Judge Biggs, dissenting, reaffirmed its holding and approved the same rule laid down in Harrison v. Paramount Pictures, Inc., 3 Cir., 1954, 211 F.2d 405, certiorari denied 348 U.S. 828, 75 S.Ct. 45, 99 L.Ed. 653. However, until the Congress case is overruled or otherwise modified or distinguished by this court it lays down the rule to be followed in this Circuit, and causes me to concur herein with some reluctance.
To further illustrate the extent to which the allegations of plaintiff’s amended complaint in this case go in invoking the Anti-Trust Act as a means of redress for plaintiff’s private injuries we can look to the other injuries she claims herein. These additional injuries are alleged to flow from the acts of Rogers in constructing and operating the quarry on land adjoining plaintiff and thereby “eliminating any possibility of the plaintiff selling her land to any other person engaged in quarrying stone or finding any other persons to produce stone for her under a written agreement or lease or license, piled thousands of tons of waste material around plaintiff’s quarry in such a way as to change the natural flow of water from plaintiff’s land, and to flood her quarry and to make it impossible for her quarry to be operated by others without causing the water to flow into the quarry of Mitchell Crushed Stone-Company, Inc., and make the operation of Sandidge quarry economically unfeasible.” The complaint further sets out that the lease, pursuant to its terms, has been renewed to November 1, 1966. It-would seem, therefore, that such alleged injuries could not occur while the lease-is in effect and the lessee is in control, of the property, and, in any event, could not be ascertained until after November 1, 1966.
The majority view, in my opinion,, properly holds that the allegations of violations of the Anti-Trust Act are sufficiently pleaded in compliance with Rule-8(a) of the Federal Rules of Civil Procedure. Since the holding in this ease in the district court, our court has given, similar expression in Central Ice Cream-Company v. Golden Rod Ice Cream Company, 7 Cir., 257 F.2d 417, following the recent case of Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80.