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Corporation, 75 I.D. 127 (1968), It is difficult to determine what that where a deposit of stone is weight the Judge gave to the testiused for the same purposes as other mony of the witnesses in this case materials of common occurrence,

and to other evidence presented as the property deemed to make the he only summarized the evidence deposit have a "distinct and special and stated his conclusions. As invalue" must command for the stone dicated, he made no analysis of the a significantly higher price in the evidence or offered any reasons for market place than the common va- his conclusions. rieties of stone.?

The majority finds that there was I do not believe the contestees met a "considerable amount of evitheir burden of proof to establish dence" to support the Judge's findthat the stone has a unique property ing that the stone in issue comwhich gives it a distinct and spe- manded a higher price in the market cial value. I disagree with the find- place. Let

place. Let us consider this evidence. ings that the preponderance of the Fink testified that at retail outevidence established that the varie

lets in Phoenix building stone of gated coloration gave the stone a types that included jasper, onyx, distinct and special value as re- quartz, sandstone, epidote, schist flected in the market price.

and others sold from $35 a ton to

$200 a ton for a "real good rose Dictum in McClarty v. Secretary of Inte

quartz or some with a lot of prrior, 408 F.2d 907, 909 (9th Cir. 1969), states that the market criteria outlined in the U.S. rites" (Tr. 90). One load of stone Mineral Development test “* * * cannot be

from contestees' quarry was sold in the exclusive way of proving that a deposit has a distinct and special economic value his yard with one large stone sellattributable to the unique property of the

ing for $75, and a premium price deposit." The court then suggests that special and unique properties of the stone may give

for "all of it” (Tr. 92). There were it an economic value not measurable by the

no receipts to corrobate this. As retail market price. For example, a unique property may reduce the costs or overhead to the rock displayed at the hearwhich would result in an increase of profit for the producer even though the market

ing, he thought it would command price of the stone would be no higher than a price of $50 (Tr. 93). Although the other varieties of building stone. Since

he has been out of the business for the Court's decision in McClarty, however, this Department has adhered to the view in

a year and half, he stated that flagthe U.S. Mineral Development case that the market place price is the significant factor in

stone had been selling for two determining whether the unique property im

cents a pound, but the type of stone parts a "distinct and special value to the deposit where the material is sold for the shown at the hearing could get five same uses as common varieties of the min

and six cents (Tr. 99). On a ton eral. The Atchison, Topeka & Santa Fe Railway Company v. Cox, United States v. Cox, 4 basis this would be a difference beIBLA 279 (1972); United States v. Thomas,

tween $40 and $100 to $120 a ton. 1 IRLA 209, 78 I.D. 5 (1971); United States V. Rogers, A-31049 (March 3, 1970); United Blakeley, through his "lumber States v. Cha8. Pfizer & Co., Inc., 76 I.D. 331, 346 (1969). In any event, there is no showing

connections in the Bay area," met here that there would be any economic advan- the sales manager for one of the lartage in the McClarty sense due to the physical

gest manufacturers of power poles property of the stone.

June 25, 1973

in the Bay area, who has an inter- $24.72, including 72 cents tax. With est in a stone yard. He wanted an the one duplication subtracted, our exclusive setup to handle the stone total of the receipts is $262 without in his area (Tr. 101). Blakely's sales tax, or $264.23 with the tax contact told him that regular Coco- added. This still leaves a minor disnino flagstone was bringing retail crepancy with the Judge's computaaround $80 a ton in the Bay area, tion, which apparently was in error. or four cents a pound, and that he The dates of these items, descripcould sell this stone, by selecting tion, and price (with tax stated and grading it, at a premium of two when given on receipt) are to three cents a pound over this follows: (Tr. 102). Although Blakely said

1. 10–28–67—142 building stone he had customers for the stone, he

at $45 per ton --- $67. 50 had no idea how much stone could

21 sq. ft. of hearth be sold. He stated :

stone at $2.50---- 52. 50

as

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A good many projects have been completed in the last two years' time here and those buildings are built once, never again. So, whatever comes up in the future, in other words, I have no way of looking into that with my crrstal ball, but it has a terrific potential. (Tr. 103.)

I have already mentioned the testimony of another witness of contestees, Lee Butler, whose business is lumber. He showed samples of stone from the quarry to other lumber dealers and his thwarted sales of stone were to such dealers (Tr. 109).

In contrast to the optimistic statements as to what the stone might bring in the retail market place, actual sales receipts submitted at the hearing show a different picture. Although there is little foundation evidence to support them, the receipts or invoices are compiled together as Exhibit K. Although the Judge stated there were ten invoices totaling $286.72, one is actually a duplicate billing statement of the same invoice (No. 6816) for

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11. 44

7. 3–1-67—20 sq. ft. mantle rock

at 1.25_tax

25. 00

. 75

25. 75

· 72

tax

. 18

.

8. 9-10-68—(same duplicate bill

struction purposes for which coming), King-Ferris

mon varieties of building stone can Supply Company,

be used such as inside and outside Invoice No. 6816,

veneering of homes and other build2 18 x 36 sandstone

ings, landscaping, fireplace and 1 24 x 24

patio construction. Contestees also 3 2 x 1

urge that the stone can be used for 1 1x112

floor and wall tile, for art pieces 16 sq. ft. at 1.50_ $24. 00

which can be mounted and distax

played like pictures, and orna

24. 72 mental objects such as lamp posts 9. 4 sq. ft. sandstone

and bases. Except for the art pieces, at 1.50_

6. 00

the record does not establish that

these other alleged uses are uses for $6. 18

which other common varieties of

stone could not be put. For example, The prices in the items listed ap

although a pleasing color of stone parently are the retail prices, not

would be a factor in choosing stone the price at the quarry. Except pos- to make a lamp or other decorative sibly for item 5, one piece of flag- object, such an attribute may be stone for $7.50, and item 6 one pair found in common varieties of stone. of matched pieces of split flagstone The inherent value of the object (picture flag) for $10, none of the

would be due to the labor and skill other items reflect prices higher in making the object rather than than the price of ordinary stone

the inherent value of the raw mateused for the same purposes. It is

rial itself unless a higher price difficult, however, to evaluate the

could be obtained for the raw matesales of the pieces of stone where a

rial. As stated in McClarty v. Secweight is not given since the usual

retary of Interior, supra, at 909, the comparison is on a per pound or

mineral deposit must have the per ton basis. This is true also with unique property and not “the fab

" respect to the three other sales of

ricated or marketed product of the single (or paired) stones noted by

deposit." the Judge at $15, $30, and $75,

The evidence as to sales of stone which were not corroborated by sales receipts. Those for which there

for art pieces is not convincing. The were sales receipts (evidently the highest alleged value received for same type of picture stone) sold for

an individual piece (or pair much lower prices than the three achieved by splitting the stone) was sales which were not so corrobo- stated by Blakeley to be $75. There rated.

is no other information concerning It is evident that the primary use

that stone. That price is signififor which the material is expected cantly different from the $30 for the to be sold is for traditional con- split stone shown on exhibit D (Tr.

June 25, 1973

69), which is also significantly dif- opinions that the stone has a disferent from the $15 received for a tinct and special value in the market somewhat similar stone in size and place, and that it can be marketed coloration shown on exhibit C (Tr. profitably. The price Fink esti67-68). There is more difference in mated could be received for the the prices received for these stones stone as flagstone was in the middle than for the alleged difference in range for building stone. Although the estimated prices that can be re- he was optimistic about the “terceived for the stone as compared rific” market potential, he could not with ordinary flagstone as stated by state what the present or future contestees' witnesses. At most, these market could be. Any opinion by sales show that the price may de- Blakeley as to a market in the Calipend greatly upon the buyer's in- fornia Bay area is based upon hearclination, and the fact that it is a

say, what one of his lumber contacts negotiated price. There is certainly in California told him the price for no evidence to support any finding the stone should be in that area in that the stone can be marketed prof- comparison with the price for ordiitably for art pieces, and these few nary Coconino sandstone being sold isolated sales are not sufficient to there. He agreed the price customestablish a unique use to satisfy the ers are willing to pay for the stone "distinct and special value” test. to a great extent is dependent upon United States v. California Soyland which type of rock they prefer (Tr. Products, Inc., 5 IBLA 179, 193 104). The essence of his testimony (1972).

is because he and some of his lumber In analyzing the evidence as to contacts liked the stone it should the sale of the material for building command a higher price than ordiand decorative work, I find there is nary stone. Is such testimony a suffia distinction between the testimony cient basis for a conclusion that the of contestees' witnesses as to any stone has a distinct and special value actual sales of the material and the because it can be sold at a distincpossible value of the material in the tively higher price than ordinary market place. Testimony as to what sandstone? I think not. market conditions might be, in con- I realize the difficulties of proof trast with evidence of what sales in establishing a "distinct and spehave been made, is simply opinion cial value” of stone where the speevidence.

cial property allegedly giving it Even if we consider all of the that value is a variegated coloration witnesses for contestees as experts and the vagaries of the market place regarding stone, although three of are dependent upon the aesthetic them testified they were primarily tastes of the potential buyers and, in the lumber business, rather than undoubtedly, upon the marketing the stone business, there is little skills of the sellers in large part. probative evidence to support their For this reason, where the facts of actual sales corroborated by some ulations of a possible potential documentary proof reflect an en- market and possible prices. Since a tirely different picture from that speculative market is not sufficient based upon mere opinion alone, the to establish marketability as indiopinion testimony cannot be given cated in Barrows v. Hickel, 447 F.2d the same weight as where the opin- 80, 83 (9th Cir. 1971); see also ion testimony is corroborated. The United States v. Stewart, 5 IBLA actual sales prices shown in the evi- 39, 79 I.D. 27 (1972); a fortiori, a dence, with the exceptions noted finding as to a distinct and special previously, were no higher and pos

value must rest on more than mere sibly less than the market place conjecture and speculation. price for common varieties of stone. Therefore, there is no basis for The evidence also supports an in- finding that the stone deposit within ference that the variegated colora- the W1/2 SW14 NE14 of Section 3 tion pattern might be a negative is an uncommon variety, and I factor in marketing as well as a plus would reverse the Judge on this factor due to the difficulties in point, or require a further hearing achieving uniformity of patterning before deciding the issue finally. (Tr. 105-107). This would be true I also disagree with the Judge's where a large volume of stone would and the majority's finding that a be desired rather than one or two prudent man could expect to market pieces.

the stone at a profit. In addition to In short, I have weighed all of establishing that there is a market, the evidence in the record and must this requires an analysis of the reach a different conclusion from claimant's expected monetary rethat reached by the Judge and the turns with his expected costs. majority as to the “distinct and spe- Adams v. United States, 318 F.2d cial value of the stone and the mar- 861 (9th Cir. 1963). The evidence in ketability at a profit. The docu- this regard is not persuasive. All of mented facts as to market prices and the

the evidence concerning retail conditions support the opinion tes- prices did not reflect the actual timony of the Government's mineral money to be received at the quarry. examiner that the stone does not There is little information on this. have a unique property giving it a This might vary depending on whedistinct and special value, but do ther the claimant or his purchaser not support the conflicting opinion were to pay the transportation costs, testimony of contestees' witnesses. the cost of loading and unloading. Some of the price estimations of Fink testified that he figured the contestees' witnesses are not of a price of quarried stone at $15, with price which is significantly higher his truck hauling it, and the quarrythan that for which common varie- men loading the truck (Tr. 94, 100). ties of stone can be sold. Other esti- His hauling costs were $6 a ton into mations are merely optimistic spec- the Phoenix area (Tr. 94). It is not

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