Corporation, 75 I.D. 127 (1968), that where a deposit of stone is used for the same purposes as other materials of common occurrence, the property deemed to make the deposit have a "distinct and special value" must command for the stone a significantly higher price in the market place than the common varieties of stone.2 I do not believe the contestees met their burden of proof to establish that the stone has a unique property which gives it a distinct and special value. I disagree with the findings that the preponderance of the evidence established that the variegated coloration gave the stone a distinct and special value as reflected in the market price. 2 Dictum in McClarty v. Secretary of Interior, 408 F.2d 907, 909 (9th Cir. 1969), states that the market criteria outlined in the U.S. Mineral Development test "* * cannot be the exclusive way of proving that a deposit has a distinct and special economic value attributable to the unique property of the deposit." The court then suggests that special and unique properties of the stone may give it an economic value not measurable by the retail market price. For example, a unique property may reduce the costs or overhead which would result in an increase of profit for the producer even though the market price of the stone would be no higher than the other varieties of building stone. Since the Court's decision in McClarty, however, this Department has adhered to the view in the U.S. Mineral Development case that the market place price is the significant factor in determining whether the unique property imparts a "distinct and special value" to the deposit where the material is sold for the same uses as common varieties of the mineral. The Atchison, Topeka & Santa Fe Railway Company v. Cox, United States v. Cox, 4 IBLA 279 (1972); United States v. Thomas, 1 IBLA 209, 78 I.D. 5 (1971); United States ▼. Rogers, A-31049 (March 3, 1970); United States v. Chas. Pfizer & Co., Inc., 76 I.D. 331, 346 (1969). In any event, there is no showing here that there would be any economic advantage in the McClarty sense due to the physical property of the stone. It is difficult to determine what weight the Judge gave to the testimony of the witnesses in this case and to other evidence presented as he only summarized the evidence and stated his conclusions. As indicated, he made no analysis of the evidence or offered any reasons for his conclusions. The majority finds that there was a "considerable amount of evidence" to support the Judge's finding that the stone in issue commanded a higher price in the market place. Let us consider this evidence. Fink testified that at retail outlets in Phoenix building stone of types that included jasper, onyx, quartz, sandstone, epidote, schist and others sold from $35 a ton to $200 a ton for a "real good rose quartz or some with a lot of pyrites" (Tr. 90). One load of stone from contestees' quarry was sold in his yard with one large stone selling for $75, and a premium price for "all of it" (Tr. 92). There were no receipts to corrobate this. As to the rock displayed at the hearing, he thought it would command a price of $50 (Tr. 93). Although he has been out of the business for a year and half, he stated that flagstone had been selling for two cents a pound, but the type of stone shown at the hearing could get five and six cents (Tr. 99). On a ton basis this would be a difference between $40 and $100 to $120 a ton. Blakeley, through his "lumber connections in the Bay area," met the sales manager for one of the largest manufacturers of power poles June 25, 1973 in the Bay area, who has an interest in a stone yard. He wanted an exclusive setup to handle the stone in his area (Tr. 101). Blakely's contact told him that regular Coconino flagstone was bringing retail around $80 a ton in the Bay area, or four cents a pound, and that he could sell this stone, by selecting and grading it, at a premium of two to three cents a pound over this (Tr. 102). Although Blakely said he had customers for the stone, he had no idea how much stone could be sold. He stated: 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 crystal 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 $24.72, including 72 cents tax. With the one duplication subtracted, our total of the receipts is $262 without sales tax, or $264.23 with the tax added. This still leaves a minor discrepancy with the Judge's computation, which apparently was in error. The dates of these items, description, and price (with tax stated. when given on receipt) are as follows: 1. 10-28-67-11⁄2 building stone at $45 per ton___ $67.50 21 sq. ft. of hearth stone at $2.50--- 52.50 120.00 less a 30% discount--- -36.00 2. 4-15-69-2 ton picture rock- 3. 6-21-69-12 sq. ft. flagstone__ 4. 7-14-65-2 rocks at 1.25___ 5. no date King-Ferris Supply 6. 8-10-69-20 lbs. picture flag 1 pair matched stone flag) tax 7. 3-1-67-20 sq. ft. mantle rock tax 84.00 100.00 2.00 .06 2.06 2.50 .08 2.58 7.50 1.00 10.00 .44 11.44 25.00 .75 25.75 The prices in the items listed apparently are the retail prices, not the price at the quarry. Except possibly for item 5, one piece of flagstone for $7.50, and item 6 one pair of matched pieces of split flagstone (picture flag) for $10, none of the other items reflect prices higher than the price of ordinary stone used for the same purposes. It is difficult, however, to evaluate the sales of the pieces of stone where a weight is not given since the usual comparison is on a per pound or per ton basis. This is true also with respect to the three other sales of single (or paired) stones noted by the Judge at $15, $30, and $75, which were not corroborated by sales receipts. Those for which there were sales receipts (evidently the same type of picture stone) sold for much lower prices than the three sales which were not so corroborated. It is evident that the primary use for which the material is expected to be sold is for traditional con struction purposes for which common varieties of building stone can be used such as inside and outside veneering of homes and other buildings, landscaping, fireplace and patio construction. Contestees also urge that the stone can be used for floor and wall tile, for art pieces which can be mounted and displayed like pictures, and ornamental objects such as lamp posts and bases. Except for the art pieces, the record does not establish that these other alleged uses are uses for which other common varieties of stone could not be put. For example, although a pleasing color of stone would be a factor in choosing stone to make a lamp or other decorative object, such an attribute may be found in common varieties of stone. The inherent value of the object would be due to the labor and skill in making the object rather than the inherent value of the raw mate rial itself unless a higher price could be obtained for the raw material. As stated in McClarty v. Secretary of Interior, supra, at 909, the mineral deposit must have the unique property and not "the fabricated or marketed product of the deposit." The evidence as to sales of stone for art pieces is not convincing. The highest alleged value received for an individual piece (or pair achieved by splitting the stone) was stated by Blakeley to be $75. There is no other information concerning that stone. That price is significantly different from the $30 for the split stone shown on exhibit D (Tr. June 25, 1973 69), which is also significantly different from the $15 received for a somewhat similar stone in size and coloration shown on exhibit C (Tr. 67-68). There is more difference in the prices received for these stones than for the alleged difference in the estimated prices that can be received for the stone as compared with ordinary flagstone as stated by contestees' witnesses. At most, these sales show that the price may depend greatly upon the buyer's inclination, and the fact that it is a negotiated price. There is certainly no evidence to support any finding that the stone can be marketed profitably for art pieces, and these few isolated sales are not sufficient to establish a unique use to satisfy the "distinct and special value" test. United States v. California Soyland Products, Inc., 5 IBLA 179, 193 (1972). In analyzing the evidence as to the sale of the material for building and decorative work, I find there is a distinction between the testimony of contestees' witnesses as to any actual sales of the material and the possible value of the material in the market place. Testimony as to what market conditions might be, in contrast with evidence of what sales have been made, is simply opinion evidence. Even if we consider all of the witnesses for contestees as experts regarding stone, although three of them testified they were primarily in the lumber business, rather than the stone business, there is little probative evidence to support their opinions that the stone has a distinct and special value in the market place, and that it can be marketed profitably. The price Fink estimated could be received for the stone as flagstone was in the middle range for building stone. Although he was optimistic about the "terrific" market potential, he could not state what the present or future market could be. Any opinion by Blakeley as to a market in the California Bay area is based upon hearsay, what one of his lumber contacts in California told him the price for the stone should be in that area in comparison with the price for ordinary Coconino sandstone being sold there. He agreed the price customers are willing to pay for the stone to a great extent is dependent upon which type of rock they prefer (Tr. 104). The essence of his testimony is because he and some of his lumber contacts liked the stone it should command a higher price than ordinary stone. Is such testimony a sufficient basis for a conclusion that the stone has a distinct and special value because it can be sold at a distinctively higher price than ordinary sandstone? I think not. I realize the difficulties of proof in establishing a "distinct and special value" of stone where the special property allegedly giving it that value is a variegated coloration and the vagaries of the market place are dependent upon the aesthetic tastes of the potential buyers and, undoubtedly, upon the marketing skills of the sellers in large part. For this reason, where the facts of actual sales corroborated by some documentary proof reflect an entirely different picture from that based upon mere opinion alone, the opinion testimony cannot be given the same weight as where the opinion testimony is corroborated. The actual sales prices shown in the evidence, with the exceptions noted previously, were no higher and possibly less than the market place price for common varieties of stone. The evidence also supports an inference that the variegated coloration pattern might be a negative factor in marketing as well as a plus factor due to the difficulties in achieving uniformity of patterning (Tr. 105-107). This would be true where a large volume of stone would be desired rather than one or two pieces. In short, I have weighed all of the evidence in the record and must reach a different conclusion from that reached by the Judge and the majority as to the "distinct and special value" of the stone and the marketability at a profit. The documented facts as to market prices and conditions support the opinion testimony of the Government's mineral examiner that the stone does not have a unique property giving it a distinct and special value, but do not support the conflicting opinion testimony of contestees' witnesses. Some of the price estimations of contestees' witnesses are not of a price which is significantly higher than that for which common varieties of stone can be sold. Other estimations are merely optimistic spec ulations of a possible potential market and possible prices. Since a speculative market is not sufficient to establish marketability as indicated in Barrows v. Hickel, 447 F.2d 80, 83 (9th Cir. 1971); see also United States v. Stewart, 5 IBLA 39, 79 I.D. 27 (1972); a fortiori, a finding as to a distinct and special value must rest on more than mere conjecture and speculation. Therefore, there is no basis for finding that the stone deposit within the W12 SW14 NE4 of Section 3 is an uncommon variety, and I would reverse the Judge on this point, or require a further hearing before deciding the issue finally. I also disagree with the Judge's and the majority's finding that a prudent man could expect to market the stone at a profit. In addition to establishing that there is a market, this requires an analysis of the claimant's expected monetary returns with his expected costs. Adams v. United States, 318 F.2d 861 (9th Cir. 1963). The evidence in this regard is not persuasive. All of the evidence concerning retail prices did not reflect the actual money to be received at the quarry. There is little information on this. This might vary depending on whether the claimant or his purchaser were to pay the transportation costs, the cost of loading and unloading. Fink testified that he figured the price of quarried stone at $15, with his truck hauling it, and the quarrymen loading the truck (Tr. 94, 100). His hauling costs were $6 a ton into the Phoenix area (Tr. 94). It is not |