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8 IBLA 407 (1972). We recognize agree with the argument made by that the Board of Land Appeals has contestees that the Judge gave too authority to reverse the fact find- much weight to the testimony of the ings of a Judge; however, where, as

mineral examiner. Contestees' arguhere, the resolution of a case de- ment is subject to the same rationpends primarily upon his findings ale set forth above. State Director of credibility, which in turn are of Utah v. Dunham, supra; Forrest based upon his reaction to the de

B. Mulkins, supra. meanor of witnesses, his findings

The decision of the Judge is supwill not be lightly set aside by this ported by the preponderance of the Board. State Director for Utah v. substantial and probative evidence Dunham, 3 IBLA 155, 78 I.D. 272 Nevertheless, the following ex(1971), and cases cited therein. cerpts of testimony are set forth,

The contestees argue on appeal since they particularly buttress our that all of their claims should have findings. been validated in toto. Contestees Robert B. Wilson, the mineral assert that the Judge gave too much examiner called by contestant, tesweight to the testimony of the min- tified as followed on cross-examinaeral examiner, Robert B. Wilson, tion by Lee Chartrand : who testified on behalf of the contestant. The Judge found, and his

[Tr. 12] finding is supported by the record, that the mineral character of the

Q. It is stated in this report that it's

common variety of sandstone orer land embraced within the claims in

[sic] wide occurrence. issue was only established in con- Do you say that this stone is found nection with the stone found on the other places? quarry which extended at most into A. Well, the Coconino sandstone forthe two 10-acre subdivisions of both

mation is exposed in northern Arizona the Arizona Picture Rock No. 2 and

from. I suppose, from around Holbrook

as far west as Seligman, that's a matter the Arizona Picture Rock No. 5.

of 150 miles or so, all along the Rim, Wilson testified that neither by and places in Gila County and it's been physical exposure nor by geological quarried in a great many places. I'd say inference could it be determined

it was a widespread occurrence. how far the stone extended laterally

Q. Would you say this particular color

and design in stone is widespread? from the quarry, although it did

A. This particular coloring, I call it extend to some degree. As noted in

a kind of a -- some of it has almost a the decision of the Judge, this testi

purple cast in the coloring, has a tenmony was uncontroverted. Thus, we dency to cross the bedding rather than are of the opinion that the Judge

be along the bedding, and that type of properly found that contestees had

coloration is, well, it's not — does occur

in other places. It's not widespread, no. not established a discovery except

This particular pattern of coloring is on those portions of the claims

not particularly widespread. which the Judge validated. We dis

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June 25, 1973 On recross-examination by Lee

[Tr. 138] Chartrand, Wilson testified:

A. I don't know about the percentage

but I believe I testified when I was on [Tr. 27]

the stand before that this particular Q. Mr. Wilson, what percent of the

type of coloration does occur in other quarries in this Coconino stone would you

places. Where the outcrops have been say had the vertical coloring, would run

deeply weathered, it does occur.

Q. Is it your testimony that this simivertically in the veins?

lar type of coloration occurs generally

throughout the flagstone deposits in [Tr. 28]

Arizona ?

A. No, no, only in those places where A. Well, I couldn't say.

the rock has been exposed to weatherQ. Do you know of any that do?

ing for a long time and certain minerals A. That is exactly like yours? By ver

are necessary to produce this type of tical [sic] you mean across it, straight coloration. up?

Q. Is this then, a common phenomenon Q. Not exactly straight up and down. or an uncommon phenomenon throughA. But almost. The coloring in this

out the flagstone deposit? rock, the way it crosses the bedding, I A. This type of coloration is relatively don't know of any Coconino sandstone uncommon throughout the Coconino that has the coloration and the crossing

sandstone. of the bedding the way this particular Q. What is the reason it is relatively stone of yours does, if that's what you uncommon?

A. That I couldn't say. Q. Yes.

The testimony of the witnesses A. I have seen it in the field where it

called by contestees was, as could be wasn't being quarried. I have never seen

expected, even more favorable on the quarry that had this feature in the rock where the coloring crossed the bed

the issue of the uniqueness of the ding so pronouncedly as it does here. stone in question. We are of the Usually it crosses it kind of sneaky and opinion that all of the testimony on you mistake the coloring for the bedding;

this issue supports the finding of it is actually crossing the bedding.

the Judge that the particular type

of Coconino sandstone on portions On Examination by the Judge, of the Arizona Picture Rock Nos. 2 Wilson testified:

and 5 possesses a unique property.

While most Coconino sandstone oc[Tr. 137]

curs in solid shades of one color or Q. Mr. Wilson, there's been testimony another, the stone in issue not only here that this type of coloration occurs occurs in variegated bands of sevin perhaps only five per cent of the total eral shades of color but the colors area of the Coconino flagstone deposit.

also occur in veins which are charWhy would not the same type of weathering have occurred in the other areas,

acterized as being vertical, i.e., genwhy only in this particular spot?

erally running upward and crossing

mean.

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[Tr. 99]

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the bedding rather than running parallel to the bedding. The occurrence of both of these properties in the same deposit of stone, as is evidenced by Contestees’ Exhibits A, B, C, D, E, F, G, H, I, and J, gives the stone a unique property.

There was a considerable amount of testimony to support the finding of the Judge that the stone in issue commanded a higher price in the marketplace than other stone used for similar purposes.

Gage Keith Fink, whose business was the quarrying of different kinds of building stone, testified on direct examination by Lee Chartrand :

Q. What is the significance in the marketplace of the swirling-type coloring that's displayed in this flagstone?

A. Its beauty.

Q. What does it do price-wise; how does it compare price-wise?

A. Oh, if you were to have an entrance put in a home and it would be the same as laying, almost, just laying cement, or laying something colorful, like laying a plain tile or a real decorative tile.

Q. I can appreciate that but what do people pay for one or the other? Is there a difference in the amount that they pay?

A. Definitely, definitely. In stones like this where we were selling retail at our yard flagstone at two cents a pound, we get five and six cents for this.

Q. Have you sold this type of stone for five or six cents a pound?

A. Oh, definitely, definitely.

Q. Whereas, you normally sell the solid-colored flagstone for two cents?

A. Two cents.

[Tr. 92]

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Q. Did you ever try any sales of this stone on your yard?

A. Yes, we had one load of this stone in our yard. We sold one stone about the size of this larger one you split here today for $75, and we got a premium price out of all of it. All the stone we had we got a premium price.

John J. Blakely, who had been in the materials and supply business for 39 years testified:

[Tr. 101, 102]

On cross-examination by counsel for contestant, Fink testified:

[blocks in formation]

[Tr. 96, 97]

Q. Now, what would the price in the stone yard be for ashlar veneer?

A. You just sell the stone * * * I'd say this stone would probably sell for- it would have to be tried in that area, but we are getting $50 for many stones that are not as near as pretty as this.

Q. * * * when this stone was shown to me I acquired some samples and immedi. ately I sold it to some of my contractors * * * I contacted two or three of the people I knew * * * and one man * * * had an interest in a stone yard up in that area, [Pacific Northwest] he was in that area on a sales trip and he im. mediately looked me up and he wanted an exclusive setup to handle this stone in his area. He told me at the time that price really wasn't any object. He said that at that time that normal regular Coconino flagstone, which a good bit of it moves out of Drake-Seligman-Williams area,

*

On examination by the Judge, Fink testified:

June 25, 1973

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was bringing retail around $80 a ton in ord discloses that contestees had sevthe Bay area, which would be four cents

eral tons of stone sorted and piled a pound, and on the basis of this type of

but were thwarted in their attempts stone, if we could supply him, he could

to market the stone because someone sell it at a premium of two or three cents a pound over this.

blocked the access road which ex

tended from the claims to the highFinally, Hal Butler, whose pri- way. It was uncontroverted at the mary business was in lumber, testi- hearing that the road was blocked fied as follows on direct examination by a timber contractor. The real by Chartrand:

bone of contention was whether the

Forest Service authorized the block[Tr. 108]

ing. In any event, we are of the opinion that the Judge properly

found that the stone in issue could A. * * (Chartrand] had taken me

be marketed at a profit. out to the quarry, and being a salesman all my life I was immediately sold on Although the Judge made no what I had seen at the quarry. I went so

express finding that the land far as to take samples of it * * * and

embraced within the validated poron my calls to the customers in the lum

tions of the claims was chiefly valuber industry I would display, show them this. I didn't have a customer that I

able for minerals under 30 U.S.C. called on that didn't want truckloads of § 161 (1970), we are of the opinion this rock.

that such a finding is implicit in his So, on the basis of that I advanced Lee

decision. The only evidence pre$5,000 to get me out some rock because I could sell it nearly everywhere I went.

sented by contestant on whether the claims in issue were chiesly valuable

for minerals was the testimony of [Tr. 109]

Leonard A. Lindquist, a timber

staff officer of the Sitgreaves NaQ. At the time I first showed you this

tional Forest. (Tr. 41.) He testiand you contacted a few buyers, what fied that in his opinion the estimated did you give me an order for on this value of the timber on all of the stone, how much did you give me? What

land embraced within the claims order did you give me first? A. I told you to get me out 100 ton im

(560 acres) was $166,000. Conmediately, that I had it sold, and it would testant argues that this testimony bring approximately $55 to $60 a ton supports an inference that the value quarried, f.o.b. quarried.

of the timber on the validated porIt is conceded by contestant that tions of the mining claims (40 a general market for stone exists in acres) is $11,440. Assuming arguthe area of the claims. Contestees, endo that this inferred estimate furthermore, presented receipts at were accurate, it must be inferred the hearing showing actual sales of from the evidence that the value of the stone. While these receipts only the stone on the same 40-acre tract total between $250 and $300 the rec- would far exceed $11,410. The min

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eral report prepared by contestant event, upon appeal from a decision states that the Coconino sandstone of an Administrative Law Judge, formation "ranges from less than this Board can make all findings of 100 ft. to more than 500 ft. in thick- fact and conclusions of law based ness.” Hal Butler testified that he upon the record just as though it advanced Lee Chartrand $5,000 for were making the decision in the first a single order of the stone. (Tr. instance. United States v. Middle

. 108.) Butler stated that he placed swart, 67 I.D. 232 (1960); 5 U.S.C. an order with Chartrand for 100 $ 557 (1970). We are satisfied from tons of the stone, which Butler had our review of all of the evidence sold, and that the 100 tons "would that the land in issue is chiefly valubring approximately $55 to $60 a able for minerals. ton *** f.o.b. quarried.” (Tr. 109.) Contestees have requested this Gage Keith Fink testified that he Board to make a field examination had sold the type of flagstone dis- of the claims to prove that all of the played at the hearing for five or six claims contain stone with unique cents a pound and that solid-colored coloration characteristics and patflagstone only sold for two cents a terns. It is not a function of this pound.

Board to make field examinations of The Judge considered the testi- mining claims. Contestees were afmony of Lindquist in connection forded an opportunity to establish with the value of the land for tim- the mineral character of the claims ber. He also considered the fact that at the hearing. Their failure to do so the stone in issue occurred in suf- cannot serve as a basis for a further ficient quantities and could be mar- evidentiary hearing. The request is keted at a profit commanding a accordingly denied. higher price than other stone used Therefore, pursuant to the aufor similar purposes. Under the thority delegated to the Board of facts and circumstances in this case, Land Appeals by the Secretary of we feel that the findings of the the Interior, 43 CFR 4.1, the deciJudge support a conclusion that the sion appealed from is affirmed. land in issue is chiefly valuable for stone. See generally, Burke v. Sou- FREDERICK FISHMAN, Member. thern Pacific R. R. Co., 234 U.S. 669 (1914); United States v. Zerwekh, WE CONCUR: supra, at 175. See also 5 C.J.S. Appeal & Error $ 1564(8). In any JOSEPH W. Goss, Member.

Douglas E. HENRIQUES, Member.

9 "Where the record does not contain ex. press findings of all material facts involved in the case or conclusions of law, it will be presumed, on appeal, that the lower court found, in favor of the prevailing party, all the facts necessary for the support of the judgment."

EDWARD W. STUEBING, Member.

ANNE POINDEXTER LEWIS, Nember.

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