Green Mountain Marble Co. v. State Highway Bd.

• Decision Date: 03 October 1972
• Docket Number: No. 162-71,162-71
• Citation: 130 Vt. 455,296 A.2d 198
• Parties: GREEN MOUNTAIN MARBLE COMPANY v. STATE HIGHWAY BOARD.
• Court: Vermont Supreme Court

Page 198

296 A.2d 198

130 Vt. 455

GREEN MOUNTAIN MARBLE COMPANY v. STATE HIGHWAY BOARD.

No. 162-71.

Supreme Court of Vermont.

Oct. 3, 1972.

Bloomer & Bloomer, Rutland, for plaintiff.

James M. Jeffords, Atty. Gen., and Richard M. Finn, Asst. Atty. Gen., for defendant.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

KEYSER, Justice.

This plaintiff appealed to the Rutland County Court from the award of the State Highway Board for the taking of 5.8 acres of land for highway purposes by condemnation on September 2, 1966. Trial was by the court which found plaintiff's total damage was $3500. The plaintiff appealed from the judgment which followed.

Numerous issues raised by the appellant are primarily factual being for the most part challenges to the findings of fact made by the trial court which it claims are clearly erroneous. The standard by which such a challenge is tested is stated in 52 V.R.C.P. thus:

'Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses and the weight of the evidence.'

The 'clearly erroneous' test is similar to that often pronounced by this Court under former 12 V.S.A. § 2385. Cf. Everlasting Mem. Wks. v. Huyck Mon. Wks., 128 Vt. 103, 258 A.2d 845 (1969); Lane Construction Corp. v. State, 128 Vt. 421, 265 A.2d 441 (1970); Brown v. Pilini & Wilson, 128 Vt. 324, 262 A.2d 479 (1970). And as stated in Mitchell v. Amadon, 128 Vt. 169, 171, 260 A.2d 213 (1969), it is our duty to take the evidence in the light most favorable to the prevailing party, here the defendant, excluding the effect of any modifying evidence.

The plaintiff is an operating company acquired by Georgia Marble Company of the state of Georgia in 1954. At the time of taking, the appellant's principal outlet of its marble business was government headstone work. It owned property in the southern part of West Rutland consisting of twenty acres. This land was divided into two noncontiguous parcels. On one parcel called 'the swamp' Green Mountain owned two quarries called the Mine and Meadow. A third quarry called Baronial was located on the other parcel containing 12 acres. The Mine quarry was around 300-400 feet from the finishing plant and at the time of taking was the quarry supplying the mill. The Meadow quarry located about 1000 feet from the mill was in the process of development. The Baronial quarry was an 'open cut' quarry, forty to fifty feet deep, one hundred feet square and located about one mile from the company's mills and shops. This quarry is the focal point of the controversy.

The appellant claims error on fifteen points which we consider in similar order as briefed.

Point I

Plaintiff excepted to Finding No. 6 which reads as follows:

'The Baronial Quarry had not been operated since about 1930, and had been filled with water for many years. It was called a reserve by the company, and was thought, probably correctly, to contain some 500,000 cubic feet of recoverable marble or about a four year supply at the then rate of operation. The stone was of good color and might meet some orders then being filled with Mine, Meadow, stone, but it was not close enough to these stones so that it could be intermingled with them. It was primarily a building stone, and the main Green Mountain activity, at the time, was the supplying of government headstones.'

The appellant argues that the use of the words 'might meet some orders' improperly minimized the substance of the testimony of its witness, Mr. Looney. He was asked whether 'any of the marble (shown by cores) in the Baronial area met the specifications of the United States government for headstones.' His answer was in the affirmative. His testimony shows that this marble could not be 'used interchangeably or substitution-wise' for the marble from either the Mine or Meadow quarries. Baronial marble in color was a shade different, he said, and for this reason could not be mixed with the others but if the entire order was for Baronial marble it could be substituted.

It is apparent that the court used the word 'might' in the context that the stone could be used although actually it was not. This was not because it was of a quality inferior for headstones. We find no error or prejudice in the finding.

Point II

Finding No. 13, challenged by the appellant, relates to the finding that there was no demand of Baronial marble for building purposes at the time of taking. At the time of taking the principal activity of the company was supplying government headstones, the stock for which came from its Mine quarry.

Demand refers to a state of being sought after. The lack of demand was amply demonstrated by the trial court in Finding of Fact No. 15. There the lack of demand was illustrated by the disuse of the quarry over 46 years, its abandoned condition, the long period that some blocks of marble quarried years before had remained unused at the quarry site until the time of taking, and the absence of present market demand. Further, the company neither had any plans to use or to reopen the Baronial quarry nor any cost figures for doing so. All of these factors had support in the record and all show a lack of demand.

The testimony about demand was not uncontroverted as appellant suggests. Defendant's witness, McSweeney, testified in this area of there being a lack of demand for Baronial marble.

He also testified that the Baronial mineral deposits did not contribute to the value of the land. His reason for this conclusion was that from a careful and detailed investigation there was no market for Baronial marble. He testified-' I don't care how much stone or how good it is, if you can't sell it, it doesn't increase the value of that property and that stone had gone for at least 35 years without making the slightest effort to remove it except when the Vermont Marble about that time took some out.'

Mr. Looney's testimony shows that some blocks which had been left at the Baronial quarry for many years were moved to plaintiff's West Rutland plant about the time of taking and placed in its block storage. 'Ultimately it was fabricated into building work and sold,' he said, from which it can well be inferred that there was no sale of the marble made before the taking.

This hardly implies a market demand for Baronial marble. Clearly the issue of demand was controverted and based upon the evidence the trial judge found no demand. The evidence fairly and reasonable supports the finding.

Point III

In Finding No. 15, the trial court found that based upon the lack of demand the mineral deposits were not a factor to be considered in the evaluation of the premises. The trial court then found the highest and best use of the premises was residential and went on to value the lands as such.

Appellant also seeks to place this case within the rationale of Farr v. State Highway Board, 123 Vt. 334, 189 A.2d 542 (1963), the leading case on valuation of mineral deposits here in Vermont. In the Farr case the condemnation proceeding involved a portion of a farm in which was located an operating sand pit from which the plaintiffs had sold considerable sand over an extended period of time prior to the taking. The Court, in its discussion of mineral deposits, there stated at 123 Vt. at 337, at 189 A.2d at 545:

'The deposit may be of value and a proper factor to be considered in arriving at the true market worth of the parent property before and after the condemnation. It is equally well settled that such deposits cannot be made the subject of a separate evaluation, apart from the land where it is contained, and added to the market value of the land as additional compensation for the taking.' (Emphasis added).

Thus, Farr v. State Highway Board, supra, stands for the proposition that when there are mineral deposits being used as a source of supply, such deposit may be of value, and is to be considered in arriving at the overall market value.

In appellant's effort to place the case at bar within the rational of Farr, it first attacks the finding that the deposits had no value, and then it attacks the manner in which Farr was utilized by the trial court.

A summation of the law as to the conditions necessary to effect an increase in the overall market value of a parcel of property containing mineral deposits is found in 4 P. Nichols, Eminent Domain § 13.22(2), (rev. 3d ed. J. Sackman 1971) as follows:

'The mere physical adaptability of the property to use as a source of supply of a mineral does not, in the absence of evidence of a market for its commercial production, effect an increase in its market value.'

Because no evidence of a market for the commercial production of the marble was introduced, other than the one sale of some blocks that had been lying on top of the ground for years, and that the quarry had been out of use 36 years before the taking, the trial court had an ample basis upon which it could find the Baronial quarry had no value. For these reasons the trial court correctly distinguished this case from Farr.

In treating the Farr case in its Conclusions of Law, the court referred to the phrase 'sales over an extended period of time' appearing in the Farr opinion. Appellant argues that that statement relates only to the issue of enhancement in Farr, and not to evidence of a market. We do not agree. One isolated sale in 1966, the details of which are not in evidence, of the marble which had laid unused for a long time, does not, as plaintiff claims, establish the existence of a market demand for the Baronial marble. The inference is to the contrary as the court found.

It is to be noted that this is not the first time a court has valued lands over a mineral deposit based upon a use other than that of mining the minerals. In Kelly v. State, 28 A.D.2d 1177, 284 N.Y.S.2d 548 (Sup.Ct.App.Div.1967), a farm was condemned which had a large gravel...