
    Orleans County Quarry Company, Respondent, v. The State of New York, Appellant.
    Third Department,
    May 3, 1916.
    Eminent domain — quarry lands—when award excessive —measure of damages — profits of business — items to be considered in determining value of land.
    An award of damages made by the Board of Claims for the appropriation of certain lands on which were several quarries which were worked intermittingly but not uniformly at a profit, held excessive and against the weight of evidence.
    In determining the profits of the quarry business, reasonable interest on the fan- value of the property involved and a fair average of the improvements and equipments should enter into the expense account.
    
      Both the quantity and quality of the stone and the cost of getting it out ready for the market should be taken into consideration, with other elements, in determining the value' of the land sought to be taken.
    A valuation of the land appropriated, made by figuring the probable amount of stone in the ground and giving the claimant that value, was erroneous, as such computation ignored to quite an extent the loss and contingencies of the business.
    Appeal by the defendant, The State of New York, from a determination and award of the Board of Claims, entered in the office of the clerk of said board on the 18th day of May, 1915, granting plaintiff a judgment of $76,327.54 for the appropriation of seven and three hundred and one one-thousandths acres of land, with interest, amounting in all to $94,477.08.
    
      Egburt E. Woodbury, Attorney-General [E. C. Aiken, Deputy Attorney-General of counsel], for the appellant.
    
      Griggs, Baldwin & Baldwin [Martin Conboy of counsel], for the respondent.
   Kellogg, P. J.:

The land appropriated was three quarry properties in the town of Murray, Orleans county. The Court of Claims valued the land appropriated by figuring the probable amount of stone in the ground and giving the claimant that value. The quarries had in fact been opened and worked intermittingly from time to time. A careful perusal of the evidence, however does not indicate that they were uniformly worked at a profit. If interest charges and the equipment and renewals supplied from time to time are taken into account, its business was hardly profitable. In determining the profits of the quarry business the reasonable interest upon the fail-value of the property involved must be considered as an expense, and a fair average of the improvements and equipment should enter into, the expense account, as apparently from the accounts the item of expenditures for improvements and equipment each year is quite large. The evidence indicates that no quarry property in that vicinity was ever sold upon the basis adopted by the Board of Claims, but such property uniformly sells at an acreage value, and no property has been sold upon an acreage valuation for real money’s worth for more than $1,000 per acre, that apparently being much more than an average price. It is evident from the accounts of the claimant,'with reference to its various quarries, that the cost of stone produced from the quarries ready for market is not at all uniform, and that the results from some quarries may be profitable while at the same time the result from a near-by quarry proves unprofitable. These quarries had in fact been opened and worked, but there is nothing to show with reasonable certainty that they could be worked at a substantial profit. If the quarries were valuable, and a profit was sure to arise from their working, it is difficult to say why operations were not carried on in them all the while, for some of the quarries worked by the plaintiff produced little if any profit, and we cannot assume that they would work the unprofitable quarries and leave unworked the more profitable ones. There are contingencies and uncertainties in every business, and apparently from the accounts and the evidence there is no certainty that these quarries can be operated for any considerable length of time at a profit. Evidently in this locality the margin of profit in working a quarry is small or doubtful. It seems unreasonable that the Board in fixing the price of this property should lay aside the usual rule of measuring the value of such properties and adopt a rule never used in that locality. Undoubtedly the proof as to the quantity and quality of the stone was important, and the cost of getting it out ready for market; but these are elements only to be considered with others in determining the value of the property. There is no limit to the value of a quarry, or sand bank, or clay bank, if an estimate can be made of the amount of stone, sand or clay which can be taken and a fixed price put upon it. Such computation ignores to quite an extent the loss and contingencies of the business. The Board should properly take into consideration the nature of the property, that it is in a locality where there are valuable quarries, and that there are quarries upon it, and that it has a value greater than farming lands, and should give consideration to the evidence as to the quality and quantity of the stone which may be quarried, but the fact remains that there are many quarry lands in the locality, and such lands have only been sold by the acre, and if all the quarry land in Orleans county can be sold by fixing the value of the stone in situ, the wealth of the county is beyond reasonable estimation. The Board did not pay attention enough to the other circumstances bearing directly upon the value of this property, and gave too much attention to the expert evidence and the estimates of the profits derived from the quarry business. The award is clearly excessive. The determination should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred.

Determination reversed on law and facts and new trial granted, with costs to appellant to abide event. The court disapproves of the finding that the land was of the value of $76,327.54, and finds that the determination of the Board of Claims is against the evidence and the recovery excessive.  