The opinion
Qtiealv, /., dissenting: Assuming that the petitioner had an economic interest in the sand and gravel which he was licensed to remove from the Kansas River, in order to be entitled to percentage depletion it was incumbent on petitioner to prove that the deposit was exhaustible. The record will not support such a finding..
The sand and gravel which was being taken from the Kansas River by the petitioner was not the original so-called virgin sand, but materials which had been deposited on the riverbed since that sand had been removed some 25 years before. The process of replenishment had been going on ever since. Thus, in the opinion of the majority, it is stated:
Mark H. Hibpshman, a geologist with the Bureau of Mines of the United States Department of Interior, made a study in 1968 of the availability of sand and gravel along the Kansas River between Junction City, Kans., which is about 70 miles upstream from petitioner’s operation, and Kansas City. On the basis of Ms study, Hibps'hm'an concluded that while there were large glacial deposits of sand and gravel lying north of the Kansas River which were traversed by streams which, directly or indirectly, were tributaries of the Kansas River, he could not determine at that time whether the supply of sand and gravel to the Kansas River below the dams was being exhausted.
No proof could be offered that the deposits would, in fact, be exhausted at any time in the future. Absent such proof, the petitioner cannot prevail.